If There Is Ever a Suggestion That the Judge’s Decision Was Not Impartial and Unbiased Grounds for Appeal May Exist
DOCKET NO. A-2436-20
Decided December 28, 2022
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division of New Jersey reversed the entry of a Final Restraining Order (FRO) after introducing a post-decision conversation between the deciding Judge and his staff in which the Judge described the Defendant as a “dirty old man.”
In K.D.M. v. J.A.M., K.D.M. filed a domestic violence complaint alleging that J.A.M., at a time she resided in the same household with him, subjected her to assault and harassment. On January 27, 2021, the trial court entered an amended temporary restraining order (TRO) against J.A.M.
A hearing was held on February 8, 2021. Shortly after hearing testimony from the parties, the court issued an oral opinion with counsel and the parties present virtually. The court found that over a period of approximately two-and a-half years, K.D.M., then a new mother in her late teens and early twenties, lived with J.A.M., the sixty-two-year-old father of her then fiancé. The court found credible K.D.M.’s testimony that J.A.M. subjected her to a pattern of unwanted physical contact of a sexual nature. The court rejected as lacking in credibility J.A.M.’s denials of K.D.M.’s allegations.
The court concluded that J.A.M.’s behavior constituted harassment pursuant to N.J.S.A. 2C:33-4 (b) and (c), a predicate act of domestic violence under N.J.S.A. 2C:25-19(a)(13). The court also found that entry of an FRO is necessary to protect K.D.M. from further abuse. See Silver v. Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). In its opinion, the court noted that it was applying the preponderance of the evidence standard, which the court accurately defined. In light of its conclusions, the court, on February 8, 2021, entered an FRO against J.A.M.
While the appeal was pending, J.A.M. filed a motion in the trial court pursuant to Rule 2:5-5(a) to settle the trial court record. According to a certification of J.A.M.’s counsel, shortly after entry of the first FRO, his office requested the audio recording of the February 8, 2021 hearing. The recording he received captured, in part, the following from the Judge:
At the end of the day, like you said, I didn’t believe him so much and I figured if I’m kinda thinking he did it, then, you know, I’m going down that road. You know? I don’t need, don’t need a dirty old man hanging around.
The appellate division found that this exchange, while occurring after the decision, introduce into the record ambiguity with respect to whether the court applied the correct evidentiary standard when reaching its decision. The court’s oral opinion unambiguously applies the correct preponderance of the evidence standard. The post-decision discussion, however, suggests the court may have made it findings of fact based on a less certain basis than the oral opinion would indicate. The comments also suggest bias toward the Defendant.
Accordingly, the Appellate Division reversed entry of the FRO and remanded for a new trial before a different Judge.
The case is important to understand Judges must remain impartial, unbiased, and must provide the appropriate legal standard when deciding a case. Here, the Judge’s comments, even after the decision, suggest that the Judge was not impartial, unbiased, and perhaps utilized the incorrect legal analysis for his decision. If there is ever a suggestion that the Judge’s decision was outside of these parameters, grounds for appeal may exist.
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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