Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

If I Miss My Restraining Order Hearing Because I Was In A Mental Health Clinic, May I Have A New Court Date?

            Yes.  If the Defendant or their attorney is not able to defend a restraining order because they were in a mental health clinic, a Judge of the Superior Court of New Jersey should grant an adjournment so the defendant’s attorney may provide proof to the court as the defendant’s mental state was essential to fighting the case.

            In State v. W.B., the New Jersey Appellate Division reviewed a domestic violence case that dealt with a defendant who suffered from mental health issues.  The defendant father, appealed from a contempt order issued by the Superior Court of New Jersey, Family Part of Burlington County, on October 22, 2014, because the court found that W.B. had violated a temporary restraining order. W.B. violated this temporary restraining order by calling his daughter from a mental health facility during a psychotic episode. W.B. argued that he was entitled to a new hearing because the Family Part committed error by denying his request for an adjournment to procure his mental health records, and that the State failed to prove that he had knowingly or purposefully violated the temporary restraining order. Under the specific circumstances, and because the production of evidence relating to W.B.’s mental state was so important to his defense, the New Jersey Appellate Division held that his adjournment request should have been granted. As such, the appellate panel vacated the contempt order and remanded the issue for a new hearing.

            W.B. signed and acknowledged receiving a complaint and temporary restraining order under the Prevention of Domestic Violence Act, New Jersey Statute 2C:25-17 to-35, on March 22, 2014. In the complaint, W.B.’s former wife alleged that he came to her place of work, insisted on seeing their adult daughter, and stayed there until the police had to escort him away from the premises. The complaint further alleged that W.B. suffered from schizophrenia and bipolar disorder, and it appeared that he was not taking his medication. According, to the temporary restraining order, W.B. was restrained from having any electronic, personal, written, oral, or other form of contact with his daughter or former spouse. The complaint also informed W.B. to appear for a final hearing in court on March 26, 2014.

            W.B. failed to appear for the hearing, and the Family Part issued a final restraining order against W.B. on March 26, 2014. According to the return of service section of the final restraining order, W.B.’s former wife failed to serve the final restraining order on him. He was not served with the final restraining order until he appeared in court in September.

            On March 31, 2014, five days after final restraining order was issued by the court, the police filed a complaint-warrant against W.B., and alleged that he had violated the temporary restraining order, which is a fourth degree crime under New Jersey Statute 2C:29-9(b), because he called his daughter’s cellphone, and left a voicemail. On October 22, 2014, the Family Part held a hearing on the issue. W.B. testified, along with both his former wife and daughter. After hearing the testimony, the Family Part judge found W.B. guilty, and sentenced him to a year of probation.

            When the parties appeared for the hearing, W.B.’s counsel requested an adjournment, and explained that he was trying to obtain certain records from a crisis center where W.B.  was involuntary committed on the day he called his daughter. His attorney had initially requested the documents two weeks before the hearing, and never received any response. He did manage to secure records from W.B.’s subsequent hospitalizations, but he was not able to get W.B.’s records from the day he called his daughter. The adjournment request was denied by the Family Part, but the judge did state that the court might reserve, depending on how the testimony evolved.

            The State submitted a copy of the temporary restraining order, and a CD with a recording of the telephone voicemail into evidence. During testimony, W.B.’s former wife explained the reason for having her daughter’s name included in the temporary restraining order. According to the daughter, this was not the first voicemail message her father left on her cell phone. She made sure to note, however, that none of his voicemails were ever threatening, there were only a nuisance. In fact, W.B. had never harmed her, or threatened to harm her. She further testified that she thought her father suffered from a mental illness. She had filed the complaint about her father’s voicemail, because she was worried she would lose her job, if he came and showed up at her place of employment.

            When W.B. testified, he claimed that he did not remember making the call to his daughter and leaving her a voicemail on her cell phone on March 31, 2014. He contended that he would never have purposefully disregarded a court ordered restraining order. When he was cross-examined, W.B. identified that the signature on the temporary restraining order was indeed his, but he alleged that he never read it, and claimed that he believed that the temporary restraining order related only to his former wife, and not his daughter.

            The Family Part, however, chose not to revisit its previous consideration of reserving its decision. Without waiting for counsel’s argument, the Family Part judge stated that he had evidence that W.B. was served, and indicated his receipt of the temporary restraining order. The judge stated that he did not know what defense W.B. could offer except that he did not read it, which was not a real defense. The judge found that the State had prevailed in the matter, and that contempt had been proven. As such, the Family Part imposed a sentence which W.B. appealed.

 On appeal, the New Jersey Appellate Division agreed with W.B. that the Family Part court should have granted his attorney’s request for an adjournment so that he could obtain W.B.’s medical records. Usually, the decision to deny or grant an adjournment request is within the broad discretion of the Family Part, and appeals of such actions are reviewed under a deferential standard. Regardless, an arbitrary and unreasonable insistence for expeditiousness when faced with a justifiable request for an adjournment violates a litigant’s right to the assistance of counsel.

The New Jersey Appellate Division stated, that in light of the specific facts of this case, the Family Part effectively deprived W.B. of developing his only defense to his contempt charge. According to New Jersey Statute 2C:29-9, a person is guilty of contempt if that person knowingly or purposefully violates any part of an order issued under the Act. In this case, it was undisputed that either the Family Part had entered a final restraining order under the Act which restrained W.B. from contacting his daughter, or that W.B. had called his daughter’s cell phone and left a voicemail. Without the psychiatric documentation, the case warranted the scant consideration the Family Part gave it.

W.B.’s attorney noted during his adjournment request that his client had been committed to a crisis center on an involuntary basis. Even though the attorney had been able to procure other documentation of subsequent hospitalizations, he was not able to get the records from the institution where W.B. was involuntarily committed when he called his daughter. As such, W.B. had a real and genuine need for an adjournment, to gather the evidence necessary for his defense.  Therefore, the New Jersey Appellate Division concluded that the Family Part judge did not correctly apply her discretion when she denied W.B.’s adjournment request, and as a result precluded him from developing evidence for his defense. Thus, the contempt order against W.B. was vacated, and the case was remanded for a new hearing, with adequate time afforded to both parties to retain experts.