Final Restraining Order (FRO) Appealed, Arguing Due Process Was Violated by Proceeding Over Zoom Instead of In-Person
DOCKET NO. A-0441-21
Decided October 18, 2022
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division of New Jersey affirmed a Final Restraining Order (FRO) against Defendant despite his objections of proceeding of the virtual platform Zoom.
In R.M.M. v. E.S.M., plaintiff received a Temporary Restraining Order (TRO) claiming defendant sexually assaulted her. . She subsequently amended her TRO complaint to include additional detail about the sexual assault, defendant’s controlling behavior during the marriage, and his refusal to return the children to her custody pursuant to the original TRO.
The trial court conducted a two-day trial via Zoom on August 18, and September 8, 2021. At the start of the hearing, defendant’s attorney objected to the case “proceeding by way of Zoom.” The judge asked why a live proceeding was required, considering “the present predicament we are in,” an apparent reference to the COVID-19 pandemic. Counsel responded, “we’re not having a live hearing,” adding defendant had “a right to face his accuser and . . . confront all witnesses,” but was “unable to do it in this format.” The judge denied counsel’s request to have the matter proceed in person.
During plaintiff’s direct examination, she confirmed the parties were married for fourteen years and had two children together. The couple met when plaintiff was a sex worker and defendant was one of her clients.
Plaintiff testified that after a verbal altercation defendant sexually assaulted her in their bedroom and verbally disparaged her calling her a “whore” and a “prostitute.” Plaintiff also testified about defendant’s controlling behavior and the custody violation.
Defendant elected to the plead the 5th Amendment and not testify despite no criminal charges being filed.
The Court entered an FRO against defendant, finding plaintiff’s undisputed testimony credible as to the sexual assault.
Defendant appealed, arguing his due process was violated by proceeding over Zoom instead of in person. The Appellate Division disagreed and affirmed the FRO, finding no due process violations given the pandemic and the Supreme Court of New Jersey’s authorization for the use of virtual platforms to conduct hearings.
The case is important to understand virtual platforms are still a large part of our Court proceedings today. Even though there have been in person proceedings going forward, virtual hearings are still taking place and they are utilized by the Courts daily.
If you have a Temporary Restraining Order (TRO) against someone else or against yourself, contact the experienced attorneys at Hark & Hark today. Furthermore, if you have recently had an FRO put against you or have been denied entry of an FRO and you believe you may have grounds to appeal, contact Hark & Hark, we help clients with prenups, divorce, custody, domestic violence, child support, alimony, adoptions and more.
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