T.F. VS. F.S. (FV-03-0797-16, BURLINGTON COUNTY AND STATEWIDE)(RECORD IMPOUNDED), A-2137-15T4

Background

T.F. (plaintiff) and F.S. (defendant) dated and cohabited; they broke up November 9, 2015. Plaintiff sought emergency relief alleging post-breakup harassment and later alleged an October 31, 2015 sexual assault.
Plaintiff first filed for a TRO on November 14, 2015 based on harassment; she subsequently amended her complaint (twice) to add sexual assault as a predicate act and also alleged prior incidents of domestic violence.
A December 10, 2015 FRO hearing occurred; plaintiff testified defendant forcibly performed oral sex and then vaginally penetrated her on October 31. Defendant denied nonconsensual conduct.
The court deferred decision and requested testimony from Detective Damiano DePinto about the timing and handling of criminal reporting and whether police actions affected plaintiff’s delay in seeking relief.
On December 14 the detective produced a police report that contained statements inconsistent with plaintiff’s testimony about why she delayed seeking a TRO; the trial court allowed the detective to testify for plaintiff’s case but precluded defendant from using or exploring the newly produced report in cross-examination or calling rebuttal witnesses.
The court credited plaintiff and entered a final restraining order (FRO). On appeal the Appellate Division vacated the FRO and remanded for a new hearing because the trial court abused its discretion and denied defendant meaningful cross-examination and rebuttal on a key credibility/delay issue.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused discretion by excluding cross-examination and rebuttal using the police report	Plaintiff relied on detective testimony and argued delay was caused by police/prosecutor actions	Defendant argued the report contradicted plaintiff’s testimony about why she delayed and he should be allowed to cross-examine and present rebuttal witnesses	Abuse of discretion; exclusion deprived defendant of fair opportunity to test credibility — vacate and remand for new hearing
Whether plaintiff presented sufficient evidence of a predicate act (sexual assault) under the Domestic Violence Act	Plaintiff testified to forcible oral and vaginal sexual assault on Oct. 31; prior incidents also alleged	Defendant denied any nonconsensual conduct	Evidence was sufficient to permit a finder of fact to conclude sexual assault occurred, but procedural error requires remand for new hearing
Whether the court properly evaluated necessity for an FRO under statutory factors	Plaintiff pointed to prior history and the October 31 assault to show immediate danger/need for protection	Defendant contended the record and procedure did not allow fair testing of those claims	Statutory factors could support an FRO, but due process errors required vacatur and new hearing before a different judge
Whether ordinary due process applies in domestic violence FRO hearings when time frames are compressed	Plaintiff relied on the court’s summary credibility findings and detective testimony	Defendant argued compressed procedures do not excuse denial of cross-examination/rebuttal rights	Due process protections apply; denying reasonable cross-examination/rebuttal violated defendant’s rights and requires a new hearing

Key Cases Cited

State v. Kuropchak, 221 N.J. 368 (2015) (standard for appellate review of evidentiary rulings: abuse of discretion)
J.D. v. M.D.F., 207 N.J. 458 (2011) (due process protections apply in domestic violence proceedings; trial protections required despite shortened timeframes)
Peterson v. Peterson, 374 N.J. Super. 116 (App. Div. 2005) (trial court erred by denying cross-examination and witness presentation in domestic violence context)
Cesare v. Cesare, 154 N.J. 394 (1998) (a single egregious act can constitute domestic violence under the Act)
N.B. v. S.K., 435 N.J. Super. 298 (App. Div. 2014) (courts must protect parties’ procedural due process rights in domestic violence hearings)
State v. Hreha, 217 N.J. 368 (2014) (recommendation to assign a different judge on remand when credibility should be reassessed)