Trial Court’s Denial of a Final Restraining Order (FRO) Decision REVERSED For Failing to Recuse Himself for Appearing to Be Biased
Docket No. A-0480-20
Decided August 25, 2021
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey reversed a trial court’s denial of a Final Restraining Order (FRO) for failing to recuse himself for appearing to be biased.
In M.G.S., the parties’ longtime relationship produced a daughter, A.F., born in May 2020. Defendant father resided with plaintiff at her parents’ home for a brief period after the birth of the child.
Shortly after their child’s birth, plaintiff ended the relationship, alleging defendant became disruptive while still living at her parents’ home. After he moved out of the house, defendant texted plaintiff repeatedly. The parties had difficulty agreeing upon a parenting time schedule, with the challenges and limitations of the COVID-19 pandemic complicating the negotiations.
On June 24, 2020, defendant went to plaintiff’s home and began punching the door and windows. Defendant initially refused to leave the premises and the police were dispatched to the property. Defendant left before the police arrived. Plaintiff did not seek a temporary restraining order at that time. After this incident, defendant continued to text plaintiff. Several weeks after the door punching incident, plaintiff sought an evaluation by forensic psychologist Dr. Philip Kaplan. Dr. Kaplan diagnosed plaintiff with post-traumatic stress disorder, and he recommended all communications between plaintiff and defendant be conducted through intermediaries to protect her from further harm.
On August 21, 2020, plaintiff filed a domestic violence complaint alleging harassment against defendant. The allegations included defendant sending texts and emails during late night hours, and defendant making at least one derogatory Facebook post. A municipal judge entered a TRO. After the TRO was entered, Dr. Kaplan issued a supplemental report articulating his concern about the risk of violence occurring against plaintiff and their child.
On October 5, 2020, the trial judge heard plaintiff’s motion in limine to admit the testimony of three witnesses, Dr. Kaplan, Dr. Champion, and defendant’s former girlfriend, R.Y.2 The judge barred the testimony of both experts, finding Dr. Kaplan’s report constituted a net opinion, and that Dr. Champion’s report “went to the ultimate issue.” The judge also barred R.Y. from testifying about prior assaults defendant allegedly committed against her, with minimal explanation. Plaintiff sought leave to file an interlocutory appeal, which we denied.
The final restraining order (FRO) hearing took place October 15, 2020. Prior to trial, plaintiff moved for recusal, arguing that she did not believe she could receive a fair and impartial trial based on the judge’s exclusion of her witnesses as well as other publicly available information she raised about the judge during the recusal motion. After a brief contentious argument, the judge denied the motion.
Immediately before the start of the FRO trial, plaintiff’s counsel argued that the judge violated the Judicial Code of Conduct by being “disrespectful” to him when the judge ruled to bar the testimony of plaintiff’s two experts and R.Y. Specifically, plaintiff’s counsel argued that the judge: ridiculed and disparaged him by calling his arguments “nonsensical,” thereby undermining his attorney client relationship with plaintiff; excluded plaintiff’s three witnesses; and predetermined plaintiff’s case by previously stating the matter was “about parenting time.” Plaintiff’s counsel also argued that the judge’s publicly available record of judicial misconduct involving a female court employee led to an appearance of general bias against women, which was disqualifying. The position of plaintiff’s counsel was that the accretive effect of the judge’s “disrespectful” tone and the act of judicial misconduct reasonably led plaintiff to believe that she could not, as a woman, receive a fair and unbiased hearing. When plaintiff’s counsel raised the misconduct argument, the judge immediately threatened to file an ethics complaint against him for doing so. The judge stated that he viewed the reference to the judicial misconduct incident as “a threat,” and as ” bullying.” When the judge accused plaintiff’s counsel of informing plaintiff about the judicial misconduct incident, plaintiff’s counsel explained that plaintiff learned of the incident when “she Googled your name.”
When plaintiff began to testify, the Judge questioned her extensively – something he did not do when defendant testified.
Plaintiff appealed the denial of the FRO. The Appellate Division reversed, finding that the Judge’s actions during the 404(b) hearing, specifically threatening plaintiff’s counsel with an ethics complaint for mentioning the judge’s prior misconduct. What’s more, the Judge did not provide a break between the 404 hearing and the trial and immediately began to question and interrupt the plaintiff during her testimony, when he did not do the same for the Defendant. The Appellate Division found that the Judge should have disqualified himself after the exchange and failing to do so gave an appearance of impropriety.
If you have a TRO against someone else or against yourself, contact the experienced attorneys at Hark & Hark today. At Hark & Hark, we help clients with prenups, divorce, custody, domestic violence, child support, alimony, adoptions and more.
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