Divorce FAQ's
1. My wife has filed a D.V. case against me solely with the purpose to try to get me removed from the marital home. She is alleging that I slapped her in the face. However, at the trial I anticipate that she will also try raise other allegations of domestic violence that are not even contained in the D.V. complaint. Is she permitted to do this?
A very common issue that arises in almost every domestic violence case is that the victim tries to “rat out” her partner on other alleged acts of domestic violence that are not even contained in the original D.V. complaint. Most judges will permit a victim/plaintiff to testify as to prior acts of domestic violence. In the family courts, the benefit of the doubt always seems to go to the victim/plaintiff. Sometimes, in D.V. cases the focus of the trial is entirely lost. The court should be forced to focus on the specific acts of domestic violence that are alleged in the complaint. Instead, quite often the victim testifies at length as to a litany of prior acts of domestic violence. In my professional opinion this is grossly unfair, and it also raises several vexing constitutional issues.
If this issue arises in a D.V. case then the defendant should immediately raise the importance of the case of H.E.S. v. J.C.S., 175 N.J. 309 (2003). In this case, the court held that to convert a hearing on a complaint alleging an act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint constitutes a basic violation of due process. Id. 391 to 392.
2. Could you please summarize the case of H.E.S. v. J.C.S., 175 N.J. 309 (2003)?
In the H.E.S. v. J.C.S., 175 N.J. 309 (2003), holding the plaintiff J.S. filed a D.V. complaint on June 28, 1996. This case was dismissed after a trial on July 2, 1996. On February 24, 1997, J.S. filed another/second D.V. complaint and she claimed that the defendant left notes on her car that was parked at her job. At the final hearing the plaintiff testified at to prior acts of domestic violence that were previously dismissed in the first complaint. The court still permitted the plaintiff to testify as to the prior acts of domestic violence, despite several objections raised by the defendant. The defendant was ultimately convicted.
On appeal, the Appellate Division found that the trial court found the defendant guilty of domestic violence based not on the allegations in the complaint, but instead of a course of prior conduct that was not even mentioned in the complaint. Id. at 391. The Appellate Division further found that the trial court violated the defendant’s due process rights by finding him guilty of acts not alleged in the D.V. complaint. Finally, the court held that it was fundamentally unfair because the defendant was convicted on acts of domestic violence that were dismissed in a prior trial.
The main importance of the J.S. holding is that the court must take judicial notice of a defendant’s constitutional right to due process when a plaintiff/victim tries to testify as to other acts of domestic violence that is not even listed in the complaint. The court should focus on the acts of domestic violence that are listed in the complaint. The relevance of prior acts of domestic violence is dubious at best. Moreover, the prejudicial impact of prior acts evidence certainly has the ability to be overwhelming and to skew the trial.
3. Please cite any relevant new case law that address due process rights in DV cases?
A. J.D. v. M.D.F., 207 N.J. 458 (2011). This was a DV case, and the major legal issue was whether it was a violation of due process to permit the plaintiff/wife to testify as to prior acts of violence that were not listed in the complaint? The Appellate Division held that the defendant/husband’s constitutional rights were indeed violated. The court noted that these additional acts are deemed an amendment to a complaint. The defendant was entitled to due process that requires notice and an adequate opportunity to prepare and respond. The court further opined that the rights of both parties can be protected by granting an adjournment and by continuing the temporary restraining order. A court should liberally grant an adjournment if the “heart of the complaint” has been expanded.