A.M.C. v. P.B. ( 2016 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4730-14T3
A.M.C.,1
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
October 21, 2016
v.
APPELLATE DIVISION
P.B.,
Defendant-Respondent.
___________________________
Argued September 14, 2016 – Decided October 21, 2016
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Middlesex County, Docket No. FV-12-2153-15.
Susan McCue argued the cause for appellant
(Central Jersey Legal Services, Inc.,
attorneys; Ms. McCue, on the briefs).
Bette R. Grayson argued the cause for
respondent (Grayson and Associates, LLC,
attorneys; Ms. Grayson, on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
1
We use initials to protect the identity of victims of domestic
violence and to preserve the confidentiality of these
proceedings. R. 1:38-3(d)(9)–(10).
In this appeal, we are asked to determine whether the trial
court erred when it denied plaintiff a final restraining order
(FRO), pursuant to the Prevention of Domestic Violence Act
(PDVA), N.J.S.A. 2C:25-17 to -35, even though it found that her
husband, a police officer, physically assaulted her on two
separate occasions over a three-week period. Applying the two-
prong analysis we articulated in Silver v. Silver, 387 N.J.
Super. 112, 125–27 (2006), the trial judge found an FRO was not
necessary to protect plaintiff from future acts or threats of
violence because plaintiff "failed to establish even a mere
likelihood that the parties would continue to interact in the
future" or that defendant posed a threat to her.
We reverse. The trial court misapplied the two-prong
standard we articulated in Silver when it failed to adequately
consider: (1) the inherently violent nature of the predicate
acts defendant committed against plaintiff over a three-week
period; (2) the fact defendant physically assaulted plaintiff to
prevent her from leaving the marital residence and seeking
refuge in a women's shelter; and (3) the parties' history of
domestic violence, which included both violent behavior and
threats of further violence. Under these circumstances, the
need to issue an FRO to protect plaintiff from further abuse by
2 A-4730-14T3
defendant is "self-evident." Silver, supra, 387 N.J. Super. at
127.
The record also shows defendant, a City of Newark Police
Officer, was not served with plaintiff's complaint or with the
temporary restraining order (TRO) issued by the Middlesex County
Family Part, as required by N.J.S.A. 2C:25-28(l). Further, "the
clerk of the court or other person designated by the court"
failed to notify the Chief of Police of the Newark Police
Department, members of the State Police, or "any other
appropriate law enforcement agency" that a TRO had been issued
against defendant, as required under N.J.S.A. 2C:25-28(n).
These failures also violated the procedures for service of
process approved by the Supreme Court in the most recent edition
of the New Jersey Domestic Violence Procedures Manual.
We hold the trial court had an obligation to determine what
caused these violations of law and Supreme Court policy. The
failure to carry out these procedural requirements compromises
the safety of domestic violence victims and undermines
defendants' constitutionally guaranteed right to due process of
law. We further hold that the trial court erred as a matter of
public policy when it considered the Judiciary's failure to
carry out these legal responsibilities as a factor in favor of
denying plaintiff's application for an FRO.
3 A-4730-14T3
I
A
On June 9, 2015, plaintiff A.M.C. fled her marital
residence in Newark and took refuge in a women's shelter located
in Middlesex County. Aided by the shelter staff and represented
by Central Jersey Legal Services, plaintiff filed a complaint
that same day in the Family Part, Middlesex County, 2 alleging
that her husband P.B., a police officer in the Newark Police
Department, committed acts of domestic violence3 against her in
the form of terroristic threats, N.J.S.A. 2C:12-3, sexual
assault,4 N.J.S.A. 2C:14-2, physical assault, N.J.S.A. 2C:12-1,
and harassment, N.J.S.A. 2C:33-4.
The Family Part considered plaintiff's ex parte
application, as authorized by N.J.S.A. 2C:25-28(i) and Rule
5:7A(a), and granted plaintiff a TRO which, inter alia,
prohibited defendant from contacting plaintiff in any way,
enjoined defendant from possessing any firearms, and directed
any law enforcement officer having jurisdiction "to search for
2
Although defendant committed the acts of domestic violence when
the parties resided in Essex County, venue is also proper "in
the county where the victim of domestic violence is sheltered."
R. 5:7A(f).
3
See N.J.S.A. 2C:25-19a (defining domestic violence).
4
Plaintiff, through her counsel, withdrew the sexual assault
charge at the FRO hearing.
4 A-4730-14T3
and to seize any issued permit to carry a firearm." As required
by N.J.S.A. 2C:25-28(l), the form order directed all law
enforcement, including by implication the Newark Police
Department,5 to serve defendant with copies of the complaint and
TRO. The court directed the parties to appear at 8:30 a.m., on
June 18, 2015, for an evidentiary hearing to determine whether
an FRO against defendant was warranted.
Both parties appeared at the FRO hearing on the date and
time indicated in the TRO and both were represented by counsel.
At the hearing, defendant testified he was not served with
copies of the complaint or the TRO.
DEFENSE COUNSEL: How did you find out about
it?
DEFENDANT: I got a call from a male voice
from a 732 phone number saying that I had a
TRO against me.
. . . .
DEFENSE COUNSEL: And did he send it to you?
Did he call you? Did . . . you get a copy
of that?
DEFENDANT: No.
5
Defendant's status as a police officer is particularly relevant
here because New Jersey law provides that "[n]otice of temporary
restraining orders issued pursuant to this section shall be sent
by the clerk of the court or other person designated by the
court to the appropriate chiefs of police, members of the State
Police and any other appropriate law enforcement agency or
court." N.J.S.A. 2C:25-28(n) (emphasis added).
5 A-4730-14T3
DEFENSE COUNSEL: What did you do after you
heard this?
DEFENDANT: I called my brother and asked
him, you know, what should I do. And he . .
. referred me to . . . you. To a lawyer's
office.
DEFENSE COUNSEL: And . . . did you come to
my office?
DEFENDANT: Yes.
DEFENSE COUNSEL: And, if you know, how did
we find out about this TRO?
. . . .
DEFENDANT: Oh, I guess you called . . . the
New Brunswick Courts and they faxed you over
a copy[.] I believe that's [how] it went.
DEFENSE COUNSEL: And that's [how] you
learned about this TRO against you?
DEFENDANT: I saw the hard copy, yes.
DEFENSE COUNSEL: And what day did you learn
about the TRO against you?
DEFENDANT: This was the . . . 15th was the
phone call. I actually saw it in your
office[.] [I]t was Wednesday, the 16th,
maybe. I don't know. I'm not sure of the
date.6
The parties married in October 2014. They do not have any
children. Plaintiff testified she "permanently" left her
6
June 15, 2015 was a Monday. The Family Part issued the TRO on
Tuesday, June 9, 2015. The FRO hearing occurred on Thursday,
June 18, 2015. Defense counsel did not request that the trial
court adjourn the FRO hearing to permit defendant more time to
prepare. Cf. H.E.S. v. J.C.S., 175 N.J. 309, 321-25 (2003).
6 A-4730-14T3
marital residence on June 9, 2015, because of defendant's
physically abusive behavior. She testified that, as she was
leaving, defendant told her "he would make [her] life hell" and
stated that he "can harm [her] whenever he wants." Defendant
then grabbed and squeezed plaintiff's arm with such force that
he left visible bruises. Plaintiff testified defendant grabbed
her arm for "[a]bout five minutes." She further testified that
while squeezing her arm, defendant stated "he can hurt [her]
whenever he feels like it."
Plaintiff offered into evidence photographs depicting the
bruises and discolorations that defendant inflicted on her arm.
In response to her attorney's question, plaintiff testified she
took these photographs "immediately after getting into [a] taxi
. . . not more than three minutes" after she left the house.
The court admitted the photographs into evidence.
Plaintiff also testified about an incident that occurred on
June 7, 2015, two days before she left the marital residence.
According to plaintiff, defendant threw two lamps in her
direction "to start a fight." The trial judge ultimately
rejected plaintiff's account of this event as not credible. The
judge accepted defendant's testimony that he played golf that
day. Defendant's testimony was corroborated by his mother, who
also resides in the house, and by the receipts of his golf trip.
7 A-4730-14T3
Because this appeal concerns only whether the court should have
issued permanent restraints, plaintiff has not challenged the
court's findings with respect to this incident.
The trial judge found that sufficient competent evidence
supported the second incident of domestic violence, which
occurred three weeks before June 9, 2015. Plaintiff testified
defendant "was very upset about an Instagram account."
Defendant "tried to choke [her]" by squeezing "[her] neck very
hard."7 Plaintiff testified defendant also grabbed her arm,
causing visible "red" bruises. The court admitted into evidence
photographs plaintiff took that same day, minutes after the
incident, which depicted the bruises to her arm and neck.
According to plaintiff, these violent assaults caused her
physical pain and fear.
Defendant testified in his own defense and called his
mother as a witness. Defendant denied ever assaulting or
7
According to plaintiff's appellate brief, the trial judge
improperly found that this assault occurred when "[d]efendant
grabbed [plaintiff] from the shower and attempted to choke her,
leaving marks on her arm and neck." We agree with plaintiff
that this was an incorrect statement of fact. Plaintiff's
testimony indicates that defendant tried to choke her because he
"was very upset about an Instagram account." Plaintiff was not
in the shower when this occurred. The trial judge also
described plaintiff's testimony as indicating that defendant
"broke a phone in December 2014 and hit his car with a tree limb
in April 2005." This statement is also unsupported by the
record.
8 A-4730-14T3
physically hurting plaintiff. Defendant's mother corroborated
her son's account of their home life. With respect to the June
9, 2015 incident, defendant testified he spoke to plaintiff when
he saw her leaving with the suitcases, but did not physically
attack her or attempt to stop her from leaving.
At the conclusion of the FRO hearing, but before making his
final decision, the judge invited counsel to address the court
in summation. Defense counsel addressed the court first. She
argued plaintiff had not met her burden of proof on the charge
of harassment because no evidence established defendant's intent
to harass her. Plaintiff's counsel argued that her client had
established three predicate acts of domestic violence, namely
harassment, terroristic threats, and assault. Neither attorney
addressed whether an FRO was warranted if the court found that
defendant committed an act of domestic violence.
B
The trial judge made specific factual findings that
defendant committed the predicate offense of simple assault on
June 9, 2015, and three weeks earlier on an unidentified date.
Under N.J.S.A. 2C:12-1a(1), a person is guilty of simple assault
if s/he "[a]ttempts to cause or purposely, knowingly or
recklessly causes bodily injury to another." N.J.S.A. 2C:11-1a
9 A-4730-14T3
defines "bodily injury" as "physical pain, illness or any
impairment of physical condition."
In support of this finding, the trial judge noted the
photographs admitted into evidence depicted plaintiff's physical
condition immediately after the June 9, 2015 incident. These
photographs show red marks on plaintiff's left forearm. The
judge found the photographs were "certainly consistent with her
vacating the marital home on June 9th, [2015,] [and] getting
into the taxi." The judge next reviewed the photographs
depicting the physical trauma plaintiff sustained three weeks
earlier. One photograph "show[ed] red marks on the left side of
. . . plaintiff's neck." The other photograph showed similar
bruises around plaintiff's "left biceps."
The judge acknowledged the parties provided conflicting
testimony with respect to these two incidents. Confronted with
such irreconcilable accounts of events, the judge stated that
"[b]ut for the photographs" he would have found the scales of
proof stand "equipoise." Stated more directly, the judge made
clear that absent the photographic corroboration, "I probably
would not find an act of assault had occurred."
The judge next addressed whether an FRO was warranted.
Addressing defendant directly, the judge stated:
The first step is, was there an act of
domestic violence? Mr. [B], I find that you
10 A-4730-14T3
did commit an act of assault against the
plaintiff.
The second step is, is it necessary for the
protection of the plaintiff for the issuance
of a final restraining order. And we look
at past history, you have one incident on
June 7th, [2015,] alleged by the plaintiff,
about this argument over lamps[.]
. . . .
[W]hat I find telling is that the defendant
was not served with a copy of the temporary
restraining order. He . . . was [not] in
contact with the plaintiff during that time
the plaintiff had vacated the home.
[T]hough I find that there was an assault, I
don't find that it is necessary for the
protection of the plaintiff to . . . issu[e]
. . . the final restraining order at this
time.
So, the request for a final restraining
order is going to be denied and the
temporary restraining order is going to be
dismissed.8
The trial judge thereafter submitted an "Amplification of
Decision," pursuant to Rule 2:5-1(b), which elaborated on his
reasons for denying the FRO. Addressing the question before us,
the judge expressly acknowledged that the initial failure to
serve defendant with a copy of the TRO influenced his refusal to
issue an FRO.
8
By order dated June 26, 2015, we granted plaintiff's emergent
application and restored the TRO pending the outcome of this
appeal.
11 A-4730-14T3
In determining whether a Final Restraining
Order is necessary to protect Plaintiff from
future acts or threats of violence, the
[c]ourt found that Defendant was completely
unaware that Plaintiff obtained a temporary
restraining order, an unawareness evincing
the type of relationship the parties had
once Plaintiff left the marital home.
Defendant appears to have had no desire to
have any continuing association with
Plaintiff, taking her absence as a sign that
their marriage was effectively over, because
Defendant did not call her or attempt to
communicate with her after she left.
The judge also noted the couple did not have any children,
and thus would not need to continue interacting as parents. The
judge again emphasized that he found the parties' testimony
equally credible. Only the photographs of plaintiff's injuries
tipped the scales in her favor.
Plaintiff, however, provided pictures
corroborating her injuries, and because the
[c]ourt had no reason to doubt her
credibility or the credibility of the
depictions in the photographs, the [c]ourt
found she had been assaulted by him. In
effect, these photographs made her slightly
more credible than Defendant, at least with
regard to those two instances.
The trial judge next directly addressed his decision to not
issue an FRO. After recognizing he needed to consider the
history of domestic violence between the parties, the judge
stated:
Here, the marriage lasted less than a year,
and the unproven allegations of domestic
violence listed in the Complaint would
12 A-4730-14T3
indicate that Defendant began abusing
Plaintiff in December 2014, two months into
their marriage. This means the unreported
allegations of domestic violence brought
before the [c]ourt in Plaintiff's Complaint
comprise most if not all of the history of
domestic violence between the parties; and
these, with the exception of the two
instances of assault, were found not
credible. Significantly, there is no
indication of a relationship between the
parties preexisting their marriage and no
allegations of domestic violence predating
the marriage. There certainly is, however,
evidence that the parties['] relationship
ended when Plaintiff left the marital home.
Consequently, due to the short nature of the
marriage and the fact the Plaintiff was only
able to establish two instances of domestic
violence despite alleging many others, the
history of domestic violence between the
parties and the best interests of the victim
did not dissuade the [c]ourt from its
finding that a Final Restraining Order was
not necessary to protect Plaintiff from
future acts or threats of violence.
II
Plaintiff argues the trial judge misapplied our decision in
Silver when he denied the FRO because he erroneously focused on
defendant's post-TRO conduct and failed to consider the relevant
statutory factors in N.J.S.A. 2C:25-29a(1) to –(6). Plaintiff
argues the trial judge ignored or failed to properly consider
the parties' history of domestic violence, N.J.S.A. 2C:25-
29a(1), which included not only actual acts of physical violence
by defendant, but threats that "he can hurt [plaintiff] whenever
he feels like it." Plaintiff argues her decision to flee the
13 A-4730-14T3
marital residence and take refuge in a women's shelter shows she
was in fear of immediate danger. N.J.S.A. 2C:25-29a(2).
Plaintiff states an FRO is clearly warranted under the second-
prong in Silver because the trial judge found defendant
physically assaulted plaintiff to stop her from leaving the
residence. According to plaintiff, the issuance of an FRO is in
her best interests, N.J.S.A. 2C:25-29a(4), because it will
provide her with the legal means to prevent defendant from
carrying out his threats to physically and psychologically harm
her "whenever he feels like it."
Defendant argues the trial judge adequately considered the
statutory factors in N.J.S.A. 2C:25-29a and correctly applied
the two-prong analysis in Silver to conclude that permanent
restraints were not needed in this case. Defendant argues the
trial judge correctly considered defendant's conduct after
plaintiff left the marital residence, which showed defendant did
not attempt to contact plaintiff even when he did not know a TRO
existed. Defendant also argues his post-TRO conduct supports
the judge's conclusion that he does not constitute a continuing
threat to plaintiff. Finally, defendant argues the trial judge
correctly considered the brief duration of the marriage and the
lack of children as factors militating against the issuance of
an FRO. In light of these findings, defendant argues the record
14 A-4730-14T3
supports the judge's refusal to issue final restraints and the
judge properly exercised his discretionary authority under the
two-prong analytical paradigm in Silver.
In Silver, we held that the judge at an FRO hearing must
perform two tasks before granting final relief under the PDVA.
Silver, supra, 387 N.J. Super. at 125. First, the judge must
determine whether plaintiff proved, by a preponderance of the
credible evidence, that defendant committed one or more of the
predicate acts set forth in N.J.S.A. 2C:25-19a. Ibid. If the
judge finds plaintiff did not meet this burden of proof, the
court must dismiss the complaint. But if the court finds a
defendant committed one or more of the predicate acts listed in
N.J.S.A. 2C:25-19a, the judge must determine whether an FRO is
needed to protect the victim. Id. at 126.
Here, the trial judge found defendant, a police officer,
physically assaulted his wife on two separate occasions.
Physical assault falls within the category of predicate offenses
listed in N.J.S.A. 2C:25-19a that inherently and unambiguously
involve the use of physical violence against a victim. A
finding of domestic violence does not require actual violence.
H.E.S., supra, 175 N.J. at 329. The Legislature's stated public
policy, which guides the enforcement of the PDVA, specifically
stressed that
15 A-4730-14T3
the official response to domestic violence
shall communicate the attitude that violent
behavior will not be excused or tolerated,
and shall make clear the fact that the
existing criminal laws and civil remedies
created under this act will be enforced
without regard to the fact that the violence
grows out of a domestic situation.
[N.J.S.A. 2C:25-18 (emphasis added).]
Consistent with these guiding principles, we held that
although [the] . . . determination [as to] .
. . whether a domestic violence restraining
order should be issued . . . is most often
perfunctory and self-evident, the guiding
standard is whether a restraining order is
necessary, upon an evaluation of the factors
set forth in N.J.S.A. 2C:25-29a(1) to -
29a(6), to protect the victim from an
immediate danger or to prevent further
abuse.
[Silver, supra, 387 N.J. Super. at 127
(emphasis added).]
In Silver, the parties were in the midst of an acrimonious
divorce, made even more rancorous by a battle for custody and
supervised parenting time over the child of the marriage. Id.
at 124. They each filed cross-complaints under the PDVA and
testified that their relationship had been mired in a history of
domestic violence. Id. at 115. The trial court found the
defendant/mother physically assaulted the plaintiff/father and
forcibly trespassed into his car. Id. at 126.
In an effort to provide a scholarly context to the thorny
legal question before the panel, Judge Fall surveyed the
16 A-4730-14T3
published opinions from this court in search of a clear answer
to the following question: Despite finding that a defendant
committed one of the predicate acts listed in N.J.S.A. 2C:25-
19a, when may a court properly refuse to issue restraints? Id.
at 126–28. As is the case with most questions involving the
human condition, the answer depends on the facts. That being
said, Judge Fall found a factor that consistently appeared in
most of the cases that upheld the denial of restraints -- the
predicate act did not involve physical violence. Id. at 122–25;
127–28.
Thus, courts may consider two key factors when determining
whether to issue permanent restraints: (1) a lack of evidence
demonstrating a history of domestic violence or abuse; and (2)
the commission of a predicate act that does not involve physical
violence against the victim. Here, the trial judge found the
absence of children supported not issuing final restraints. We
disagree. The Legislature intended "to assure the victims of
domestic violence the maximum protection from abuse the law can
provide[.]" S.Z. v. M.C., 417 N.J. Super. 622, 625 (App. Div.
2011) (quoting N.J.S.A. 2C:25-18). The Legislature defined
"victim of domestic violence" to include:
[A]ny person who is 18 years of age or older
or who is an emancipated minor and who has
been subjected to domestic violence by a
spouse, former spouse, or any other person
17 A-4730-14T3
who is a present household member or was at
any time a household member. "Victim of
domestic violence" also includes any person,
regardless of age, who has been subjected to
domestic violence by a person with whom the
victim has a child in common, or with whom
the victim anticipates having a child in
common, if one of the parties is pregnant.
"Victim of domestic violence" also includes
any person who has been subjected to
domestic violence by a person with whom the
victim has had a dating relationship.
[N.J.S.A. 2C:25-19d.]
The fact plaintiff did not have children with defendant
should not adversely affect her entitlement to permanent
injunctive relief under the second-prong of Silver. Nothing in
N.J.S.A. 2C:25-19d's text or the PDVA's underlying public policy
found in N.J.S.A. 2C:25-18 suggests that the absence of children
supports denying a victim of domestic violence the maximum
protection from abuse the law can provide. See S.Z., supra, 417
N.J. Super. at 625–26 (providing examples where restraining
orders were granted even though no children existed).
Conversely, courts should carefully consider both the
presence of children in a household plagued by domestic violence
and the parents' role in raising those children when they
determine whether to issue final restraints against a defendant
and whether to permit the defendant to interact with the
plaintiff for the purposes of parenting. As the Legislature
noted:
18 A-4730-14T3
[T]here is a positive correlation between
spousal abuse and child abuse; and that
children, even when they are not themselves
physically assaulted, suffer deep and
lasting emotional effects from exposure to
domestic violence. It is[,] therefore, the
intent of the Legislature to assure the
victims of domestic violence the maximum
protection from abuse the law can provide.
[N.J.S.A. 2C:25-18.]
Indeed, domestic violence cases involving parents of young
children present particularly challenging considerations. Upon
issuing an FRO in favor of an abuse victim who must interact
with his or her abuser as a parent, a court must be particularly
vigilant to not only enforce the PDVA, but also to fulfill its
"parens patriae responsibility, which authorizes the court to
intervene where it is necessary to prevent harm to a child."
Segal v. Lynch, 413 N.J. Super. 171, 181 (App. Div.) (citing
Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009)), certif. denied,
203 N.J. 96 (2010). But this consideration is not relevant
here.
We next review the trial judge's consideration of
defendant's conduct after plaintiff left the marital residence
and the relative brief duration of the marriage as factors
weighing against the issuance of an FRO. As we will explain,
neither consideration is relevant when determining whether final
restraints should have been issued under the second-prong of
19 A-4730-14T3
Silver. As we noted earlier, the trial judge found in his
Amplification of Decision that "the parties' relationship ended
when Plaintiff left the marital home."
These findings are based more on speculation than evidence
in the record. There is no rational basis for the judge to use
the duration of the marriage as a reliable predictor of
defendant's future conduct with plaintiff, who remains his wife
until the marriage is legally dissolved. The duration of the
marriage is not a relevant factor under N.J.S.A. 2C:25-29a(1) to
–(6). Moreover, in the course of his analysis, the judge
minimized one of the principal concerns that drove our analysis
in Silver: Whether the predicate offense involved a violent act.
Silver, supra, 387 N.J. Super. at 127. Indeed, in Silver, we
reversed the trial court's decision to dismiss the plaintiff's
complaint because the record showed the defendant committed a
trespass which "was accompanied by an act of violence in the
form of an assault." Ibid.
The second-prong of Silver requires the trial court to
evaluate the factors set forth in N.J.S.A. 2C:25-29a(1) to -(6)
to determine whether an FRO should be issued. This standard
exists to protect the victim from an immediate danger or to
prevent further abuse. Ibid. See also N.J.S.A. 2C:25-29b.
When the predicate act is an offense that inherently involves
20 A-4730-14T3
the use of physical force and violence, the decision to issue an
FRO "is most often perfunctory and self-evident." Silver,
supra, 387 N.J. Super. at 127. But even when the predicate act
does not involve physical violence, the trial court must still
evaluate the factors in N.J.S.A. 2C:25-29a(1) to –(6) to
determine whether an FRO is warranted to protect the victim from
an immediate danger or to prevent further abuse.
We have noted that "[i]t is clear that the Legislature did
not intend that the commission of any one of these acts
automatically mandates the issuance of a domestic violence
order." The most often cited potential misuse of the PDVA
involves the predicate offense of harassment. L.M.F. v. J.A.F.,
Jr., 421 N.J. Super. 523, 533–34 (App. Div. 2011). Although a
defendant might not use direct physical violence when he or she
engages in the predicate acts of harassment, N.J.S.A. 2C:33-4,
or stalking, N.J.S.A. 2C:12-10,9 these acts can cause great
9
As construed by our Supreme Court,
the statutory offense reaches and punishes a
person who engages in a course of stalking
conduct even if the person is operating
under the motivation of an obsessed and
disturbed love that purportedly obscures
appreciation of the terror that his or her
conduct would reasonably cause to the
victimized person.
[State v. Gandhi, 201 N.J. 161, 170 (2010).]
21 A-4730-14T3
emotional harm and psychological trauma. Thus, we must never
lose sight of Justice O'Hern's admonition that "there is no such
thing as an act of domestic violence that is not serious."
Brennan v. Orban, 145 N.J. 282, 298 (1996).
Guided by these principles, we return to the facts of this
case. The trial court found defendant physically assaulted
plaintiff on two separate occasions in a period of less than
three weeks. Although both assaults involved physical violence
and left plaintiff emotionally shaken and visibly bruised, the
second physical assault was more egregious because defendant
committed it to prevent plaintiff from leaving the marital
residence and seeking refuge in a women's shelter. Applying the
standards in Silver to these findings, we are satisfied
plaintiff has established the need for an FRO as a matter of
law.
We reach this conclusion based on: (1) defendant's history
of domestic violence, which included both physical violence and
threats of violence, N.J.S.A. 2C:25-29a(1); (2) plaintiff's
decision to leave the marital residence and defendant's acts of
physical aggression to stop her, which established "the
existence of immediate danger," N.J.S.A. 2C:25-29a(2); and (3)
the fact that, under these circumstances, the issuance of final
restraints is indisputably in plaintiff's best interests,
22 A-4730-14T3
N.J.S.A. 2C:25-29a(4). In short, this is the type of case for
which the issuance of final restraints should have been
axiomatic or, as Judge Fall stated, "perfunctory and self-
evident." Silver, supra, 387 N.J. Super. at 127.
III
We cannot conclude our review of this appeal without
addressing defendant's allegation that he was not served with
the TRO. When the Legislature adopted the PDVA, it made the
Judiciary responsible for "protect[ing] victims of violence that
occurs in a family or family-like setting by providing access to
both emergent and long-term civil and criminal remedies and
sanctions, and by ordering those remedies and sanctions that are
available to assure the safety of the victims and the public."
N.J.S.A. 2C:25-18.
The Judiciary must also enforce the procedural mechanisms
established to ensure the expedited review of domestic violence
complaints and the issuance of emergent orders, which give
victims of domestic abuse temporary protection from their
abusers. The Judiciary must carry out these measures in
accordance with the basic principle of due process, guaranteed
by both the Fourteenth Amendment of the United States
Constitution, U.S. Const. amend. XIV, § 1, and Article I,
paragraph 1 of the New Jersey Constitution. See H.E.S., supra,
23 A-4730-14T3
175 N.J. at 321–22 (quoting McKeown-Brand v. Trump Castle Hotel
& Casino, 132 N.J. 546, 559 (1993)) ("At a minimum, due process
requires that a party in a judicial hearing receive 'notice
defining the issues and an adequate opportunity to prepare and
respond.'").
The PDVA imposes on the Judiciary the following specific
obligations:
An order granting emergency relief, together
with the complaint or complaints, shall
immediately be forwarded to the appropriate
law enforcement agency for service on the
defendant, and to the police of the
municipality in which the plaintiff resides
or is sheltered, and shall immediately be
served upon the defendant by the police,
except that an order issued during regular
court hours may be forwarded to the sheriff
for immediate service upon the defendant in
accordance with the Rules of Court. If
personal service cannot be effected upon the
defendant, the court may order other
appropriate substituted service. At no time
shall the plaintiff be asked or required to
serve any order on the defendant.
[N.J.S.A. 2C:25-28(l).]
Further, the July 2004 updated version of the New Jersey
Domestic Violence Procedures Manual10 (hereinafter the "Manual")
10
Since it was jointly adopted by our Supreme Court and the
State Attorney General in 1991, the revised editions of the New
Jersey Domestic Violence Procedures Manual "provide[] procedural
guidance for law enforcement officials, judges and judiciary
staff in implementing the Prevention of Domestic Violence Act."
Supreme Court of N.J. & Attorney Gen. of N.J., State of New
(continued)
24 A-4730-14T3
provides specific, detailed procedures for serving a domestic
violence complaint, a TRO, and an FRO. Here, plaintiff filed
her domestic violence complaint and obtained the TRO in the
Family Part of Middlesex County. Defendant resides in the City
of Newark in Essex County and serves as a police officer in the
Newark Police Department. Section 4.7 of the Manual describes
the specific steps Judiciary staff members must follow to serve
a defendant who resides in a different county:
4.7.1 When a temporary or final restraining
order is issued that requires service
outside the issuing county, the restraining
order must immediately be brought or faxed
to the Sheriff's Department or other
designated law enforcement agency in the
issuing county.
A. The Sheriff's Department or other
designated law enforcement agency in the
issuing county must bring or fax the order
and related documents to the sheriff's
department or other designated law
enforcement agency in the county of the
defendant's residence or business.
B. The Sheriff's Department or other
designated law enforcement agency in the
receiving county, pursuant to local policy,
will either:
(1) Execute service on the defendant, or
(2) Immediately bring or fax the order and
related documents to the sheriff or other
(continued)
Jersey Domestic Violence Procedures Manual (Oct. 9, 2008),
available at
http://www.judiciary.state.nj.us/family/dvprcman.pdf.
25 A-4730-14T3
designated law enforcement agency in the
municipality in which the defendant resides
or works so that it can execute service
accordingly.
C. The return of service should then be
faxed back to the sheriff's department or
other designated law enforcement agency in
the issuing county, which in turn must
immediately deliver or fax the return of
service to the Family Division in the
issuing county.
4.7.2 Once service on the defendant is
attempted, successfully or unsuccessfully,
the return of service portion of the TRO
must be filled out by the sheriff's
department or other designated law
enforcement agency and immediately faxed or
returned to the Family Division prior to the
scheduled final hearing date.11
11
The Manual makes clear that its Judiciary sections "reflect[]
court policies existing as of the date of its preparation[.]"
However,
in the event there is a conflict between the
Manual and any statement of policy issued by
the Supreme Court, the Judicial Council or
the Administrative Director of the Courts,
that statement of policy, rather than the
Manual, will be controlling. Other than in
that circumstance however, the Judiciary
portion of this Manual is binding on court
staff. This Manual is not intended to change
any statute or court rule, and in the event
a statute or court rule differs from this
manual, the statute or rule will control.
[Supreme Court of N.J. & Attorney Gen. of
N.J., supra, n. 10 (emphasis added).]
26 A-4730-14T3
N.J.S.A. 2C:25-28(n) also requires that notice of the TRO
"shall be sent by the clerk of the court or other person
designated by the court to the appropriate chiefs of police,
members of the State Police and any other appropriate law
enforcement agency or court." Here, defendant alleged he was
not served with plaintiff's complaint or the TRO. He also
alleged that he first learned the TRO existed when an anonymous
male called him three days before the scheduled FRO hearing.
Defendant claimed the caller used a telephone with a "732" area
code. Pursuant to N.J.R.E. 201(b), we take judicial notice that
the area code "732" includes Middlesex County.
Because defendant was a Newark Police Officer when the TRO
was issued and, as far as we know continues to be employed in
this capacity, the Essex County Sheriff's Department or the
Newark Police Department should have had no difficulty serving
him with the domestic violence complaint and the TRO. Yet
despite the clear statutory and regulatory mandates, defendant
was not served with the domestic violence complaint or the TRO.
Moreover, contrary to Subsection 4.7.2 of the Manual, "the
return of service portion of the TRO [was not] filled out by the
sheriff's department or other designated law enforcement agency
and immediately faxed or returned to the Family Division prior
to the scheduled final hearing date." Even more troubling given
27 A-4730-14T3
defendant's status as a police officer, “the clerk of the court
or other person designated by the court” did not notify the
Chief of Police of the Newark Police Department of the existence
of the TRO, as required by N.J.S.A. 2C:25-28(n).
Under these circumstances, it would have been entirely
reasonable for defendant, who was represented by counsel, to
have requested that the trial court adjourn the FRO hearing to
enable him to prepare his defense. See H.E.S., supra, 175 N.J.
at 323 (citing H.E.S. v. J.C.S., 349 N.J. Super. 332, 342–43
(App. Div. 2002)). Defendant did not request an adjournment.
Notwithstanding defendant's failure to object, the trial judge
had an independent duty to determine the cause of this
systematic failure. Both the PDVA and the Manual, which the
Supreme Court adopted to implement the PDVA, impose specific
obligations on the Judiciary to ensure that victims of domestic
violence are protected from abuse. These sources of legal
authority also impose a concomitant responsibility on the
Judiciary to ensure that individuals charged with committing
domestic violence offenses are treated fairly and receive the
full panoply of due process rights guaranteed by our federal and
State constitutions.
"The temporary restraining order's purpose is to provide
the domestic violence victim with a buffer zone of safety and
28 A-4730-14T3
shield the victim from the risk of contact with an abuser."
State v. Dispoto, 189 N.J. 108, 120 (2007). It greatly concerns
us that plaintiff was denied this protection because the
Judiciary failed to perform a material clerical task that the
Legislature expressly entrusted it to perform. See N.J.S.A.
2C:25-28(l) and (n).
We cannot overlook that defendant's status as a police
officer should have made service of the complaint and the TRO a
relatively straightforward task to accomplish. Judges must
preserve the integrity of the judicial process, even from the
appearance of impropriety. Kane Props. v. City of Hoboken, 214
N.J. 199, 221 (2013) (citing In re Cipriano, 68 N.J. 398, 403
(1975)). Anything that may give a reasonable, fully informed
person cause to doubt or question the impartiality of the
judicial proceeding threatens the Judiciary's core values of
independence, integrity, fairness, and quality of service. See
N.J. Judiciary, Statement of Core Values, New Jersey Courts
(2016), http://www.judiciary.state.nj.us/mission.html. Thus, as
a matter of public policy, the trial court should not have
considered the Judiciary's unexplained failure to carry out its
statutory responsibilities under N.J.S.A. 2C:25-28(l) and (n) as
a factor in favor of denying plaintiff the protections she was
entitled to receive under the PDVA.
29 A-4730-14T3
IV
The trial court's order denying plaintiff an FRO under the
PDVA, despite finding defendant physically assaulted plaintiff
on two separate occasions within a three-week period, is
reversed. Applying the two-prong standard we first articulated
in Silver, we hold that under the uncontested material facts of
this case, plaintiff was entitled to an FRO as a matter of law.
We also hold that, notwithstanding defendant's failure to
object, the trial judge had an independent duty under N.J.S.A.
2C:25-28(l) and (n) to determine the reason defendant was not
served with a copy of plaintiff's complaint and TRO.
30 A-4730-14T3