C.J. VS. J.S. (FV-07-2872-15, ESSEX COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2018 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3485-16T1
C.J.,
Plaintiff-Respondent,
v.
J.S.,
Defendant-Appellant.
_____________________________
Submitted May 7, 2018 – Decided July 5, 2018
Before Judges O'Connor and Vernoia.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Essex County,
Docket No. FV-07-2872-15.
Garrity, Graham, Murphy, Garofalo & Flinn, PC,
attorneys for appellant (Francis X. Garrity,
on the brief).
Respondent has not filed a brief.
PER CURIAM
Defendant J.S. appeals from a Family Part order denying his
motion to delete his name from the Domestic Violence Central
Registry (Registry). Having considered the record and defendant's
arguments under the applicable legal principles, we affirm.
I.
The pertinent facts are not disputed. In April 2015, plaintiff
C.J. filed a complaint alleging defendant committed the offenses
of assault and criminal restraint against her, and seeking entry
of a domestic violence restraining order pursuant to the Prevention
of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. The
court entered a temporary domestic violence restraining order
against defendant.
Following a hearing, the court denied plaintiff's request for
a final domestic violence restraining order (FRO). Less than a
week later, the court granted plaintiff's request for
reinstatement of the temporary domestic violence restraining
order. The court then conducted a hearing, determined defendant
committed an act of domestic violence as defined by the PDVA,
N.J.S.A. 2C:25-19(a),1 and issued an FRO against defendant.
Defendant appealed.
While defendant's appeal was pending, plaintiff requested
dismissal of the complaint and FRO. On November 5, 2015, the
trial court granted plaintiff's request and entered an order
vacating the FRO and dismissing the complaint.
1
The court determined defendant assaulted plaintiff. See
N.J.S.A. 2C:25-19(a)(2) and N.J.S.A. 2C:12-1.
2 A-3485-16T1
Defendant then moved to dismiss his appeal, claiming it was
moot because the FRO had been vacated and the complaint was
dismissed. He also moved for an order deleting his name from the
Registry. We entered an order granting defendant's motion to
dismiss his appeal as moot, and remanded the matter for the trial
court to consider defendant's motion to delete his name from the
Registry.
In support of his motion before the remand court, defendant
submitted a certification claiming his name should be removed from
the Registry because dismissal of the complaint rendered the
court's findings he violated the PDVA a "nullity," and made it as
though the complaint "never existed." After hearing argument from
defendant's counsel,2 the court found dismissal of the complaint
did not "completely erase the finding of domestic violence that
was originally made by the [c]ourt," and "[t]he finding of domestic
violence remains a part of the [c]ourt's record . . . ." The
court determined N.J.S.A. 2C:35-34 required the Administrative
Office of the Courts to "establish and maintain a central registry
of all persons who have had domestic violence restraining orders
entered against them," and there was no statutory authority
permitting expungement of defendant's information from the
2
Plaintiff did not participate in the proceeding before the
remand court and has not participated in this appeal.
3 A-3485-16T1
Registry. The court concluded defendant was not entitled to the
requested deletion of his name from the Registry, and entered an
order denying his motion. This appeal followed.
On appeal, defendant makes the following arguments:
POINT ONE
The Trial Court Erred in Denying Defendant's
Motion to Have His Name Removed from the
Domestic Violence Central Registry.
A. [The trial court's] denial of defendant's
application to have his name removed from the
Domestic Violence Central Registry denied
defendant the right to due process.
B. [The trial court's] ruling failed to
recognize that the Order vacating the Final
Restraining Order removed the statutory
prerequisite for placing a person on the
Central Registry in the first place.
II.
An FRO "is not merely an injunction entered in favor of one
private litigant against the other." J.S. v. D.S., 448 N.J. Super.
17, 22 (App. Div. 2016) (citation omitted). Courts "have
consistently recognized that the issuance of an FRO 'has serious
consequences to the personal and professional lives of those who
are found guilty of what the Legislature has characterized as a
serious crime against society.'" Franklin v. Sloskey, 385 N.J.
Super. 534, 541 (App. Div. 2006) (quoting Bresocnik v. Gallegos,
367 N.J. Super. 178, 181 (App. Div. 2004)); see also N.J.S.A.
4 A-3485-16T1
2C:25-18. "Once a final restraining order is entered, a defendant
is subject to fingerprinting, N.J.S.A. 53:1-15, and the
Administrative Office of the Courts [AOC] maintains a central
registry of all persons who have had domestic violence restraining
orders entered against them, N.J.S.A. 2C:25-34." Sloskey, 385
N.J. Super. at 541 (quoting Peterson v. Peterson, 374 N.J. Super.
116, 124 (App. Div. 2005)); see also D.N. v. K.M., 216 N.J. 587,
593 (2014) (Albin, J., dissenting) (cataloging the consequences
under N.J.S.A. 2C:25-29(b) resulting from entry of a domestic
violence FRO).
Entry of an FRO also "imposes continuing obligations upon the
Judiciary[.]" J.S., 448 N.J. Super. at 22. N.J.S.A. 2C:25-34
requires the Administrative Office of the Courts to
establish and maintain a central registry of
all persons who have had domestic violence
restraining orders entered against them, all
persons who have been charged with a crime or
offense involving domestic violence, and all
persons who have been charged with a violation
of a court order involving domestic violence.
[(Emphasis added).]
"[T]he Legislature did not intend that every [FRO] . . .
would be forever etched in judicial stone." A.B. v. L.M., 289
N.J. Super. 125, 128 (App. Div. 1996). "[I]t is not uncommon for
domestic violence plaintiffs to seek dismissal of their actions
either before or after entry of an FRO." J.S., 448 N.J. Super.
5 A-3485-16T1
at 21. The PDVA provides that "[u]pon good cause shown, any final
order may be dissolved or modified upon application" to the same
Family Part judge who issued the order or to one with access to
"a complete record of the hearing or hearings on which the order
was based." N.J.S.A. 2C:25-29(d) (emphasis added); see also G.M.
v. C.V., 453 N.J. Super. 1, 12 (App. Div. 2018); T.M.S. v. W.C.P.,
450 N.J. Super. 499, 502 (App. Div. 2017); Mann v. Mann, 270 N.J.
Super. 269, 274 (App. Div. 1993); Carfagno v. Carfagno, 288 N.J.
Super. 424, 433-34 (Ch. Div. 1995).
Defendant argues he is entitled to the removal of his name
from the Registry because the FRO was "vacated." He contends the
court's vacation of the FRO eliminated the sole basis supporting
his inclusion in the Registry and, as a result, he is entitled to
his name's removal. We are not persuaded.
An appellate court's primary purpose in construing a statute
is to "discern the meaning and intent of the Legislature." State
v. Gandhi, 201 N.J. 161, 176 (2010). "There is no more persuasive
evidence of legislative intent than the words by which the
Legislature undertook to express its purpose; therefore, we first
look to the plain language of the statute." Perez v. Zagami, LLC,
218 N.J. 202, 209-10 (2014). "We ascribe to the statutory words
their ordinary meaning and significance, and read them in context
with related provisions so as to give sense to the legislation as
6 A-3485-16T1
a whole." DiProspero v. Penn, 183 N.J. 477, 492 (2005) (internal
citation omitted). When the statutory language "clearly reveals
the meaning of the statute, the court's sole function is to enforce
the statute in accordance with those terms." McCann v. Clerk of
Jersey City, 167 N.J. 311, 320 (2001) (quoting SASCO 1997 NI, LLC
v. Zudkewich, 166 N.J. 579, 586 (2001)).
The plain language of N.J.S.A. 2C:25-34 does not require or
permit the removal of defendant's name from the Registry. The
statute does not limit its application to defendants with active
FRO's. See N.J.S.A. 2C:35-34. To the contrary, N.J.S.A. 2C:25-
34 expressly requires maintenance of "a central registry of all
persons who have had domestic violence restraining orders entered
against them[.]"3 (Emphasis added).
Indeed, the Legislature provided for the dissolution of
FRO's, N.J.S.A. 2C:25-29(d), and thus understood FRO's would be
entered and later dissolved. See Berg v. Christie, 225 N.J. 245,
284 (2016) (alteration in original) (quoting Mahwah Twp. v. Bergen
Cty. Bd. of Taxation, 98 N.J. 268, 279 (1985) ("The Legislature
is presumed to have been aware of existing legislation[.]"). The
3
N.J.S.A. 2C:25-34 similarly requires entry in the Registry for
"all persons who have been charged with a crime or offense
involving domestic violence, and all persons who have been charged
with a violation of a court order involving domestic violence[.]"
(Emphasis added).
7 A-3485-16T1
Legislature did not provide for the removal of a defendant's name
from the Registry following the dissolution of an FRO. Thus,
under N.J.S.A. 2C:25-34's plain language, defendant must be
included in the Registry — he is a "person who [has] had" an FRO
entered against him. Defendant's designation in the Registry,
however, will show that the FRO was dismissed.4
Defendant seeks refuge from N.J.S.A. 2C:25-34's plain
language by asserting the court's use of the term "vacated" in the
order dissolving the FRO should be interpreted as a declaration
that the court's prior finding he committed an act of domestic
violence is a nullity. This argument is untethered to a citation
to any legal authority, and we find no support in the law or the
4
The State of New Jersey Domestic Violence Procedures Manual
(the manual) (Oct. 9, 2008), was adopted by the Supreme Court to
implement the PDVA, and "is intended to provide procedural and
operational guidance for two groups with responsibility for
handling domestic violence complaints in the state of New Jersey-
judges and Judicial staff and law enforcement personnel." T.M.S.,
450 N.J. Super. at 504 (quoting State of N.J. Domestic Violence
Procedures Manual, at i). The manual requires different coding
in the Registry for defendants with active FRO's and those for
whom FROs have been dismissed. See State of N.J. Domestic Violence
Procedures Manual, app. 22 at 26 (reprinting the June 2008 New
Jersey Family Automated Case Tracking System DVCR Inquiry Guide).
The manual requires that defendants with active FRO's be coded in
the Registry as "ACTIVE/FRO Final restraining order in effect,"
and those defendants whose FRO's have been dismissed must be coded
in the Registry as "DISMISSED No restraining order in effect."
Ibid. The manual may be accessed at
https://www.judiciary.state.nj.us/courts/assets/family/dvprcman.
pdf.
8 A-3485-16T1
record for the contention. The order vacating the FRO constituted
nothing more than a declaration the FRO was no longer effective.
See N.J.S.A. 2C:25-29(d) (authorizing the dissolution of an FRO).
The record is bereft of any evidence that the court's vacation of
the FRO constituted a determination that the findings supporting
the issuance of the FRO were a nullity.5 We reject defendant's
argument to the contrary.
Defendant's contention he is entitled to removal from the
Registry is tantamount to a request for an expungement of the
Registry record showing an FRO was issued against him. However,
as our Supreme Court found in Shah v. Shah, 184 N.J. 125, 140
(2005), "a final restraining order may well have severe collateral
consequences, including registration in a central registry," but
"registration . . . is not subject to expungement." See also In
re M.D.Z., 286 N.J. Super. 82, 87 (App. Div. 1995) (holding that
the expungement statute does not extend to domestic violence
complaints, including those in which the victim seeks restraints).
5
We do not address defendant's argument, founded on unpublished
cases, that a defendant is entitled to removal from the Registry
following a determination on appeal that an FRO should not have
been entered in the first instance. See R. 1:36-3. This case
does not involve a circumstance where a defendant requests removal
from the Registry following the reversal of an FRO because there
was insufficient evidence supporting the FRO's issuance.
9 A-3485-16T1
In sum, we find no merit in defendant's contention that the
order vacating the FRO required the removal of his name from the
Registry. His inclusion in the Registry is mandated because,
although the FRO has been vacated, he is an individual who has had
an FRO entered against him. N.J.S.A. 2C:25-34.
III.
Defendant claims he was denied procedural due process because
his appeal from the FRO was dismissed as moot, and he was therefore
precluded from challenging the sufficiency of the evidence
supporting the determination plaintiff was entitled to the FRO.
He contends that if his appeal had been successful, his name would
have been removed from the Registry. He also asserts that
maintenance of his name in the Registry will damage his reputation
and interfere with his ability to obtain employment with law
enforcement agencies.
Defendant's procedural due process argument is without merit
sufficient to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E). Nonetheless, we add the following comments.
Procedural due process is founded on "the fundamental notion
that litigants are entitled to notice and a meaningful opportunity
to be heard." N.J. Div. of Youth & Family Servs. v. R.D., 207
N.J. 88, 119 (2011). However, "due process is flexible and calls
for such procedural protections as the particular situation
10 A-3485-16T1
demands." Ibid. (quoting Morrissey v. Brewer, 408 U.S. 471, 481
(1972)).
Defendant's procedural due process argument is a limited one.
He does not dispute that entry of the FRO and the concomitant
placement of his name in the Registry as mandated by N.J.S.A.
2C:25-34 occurred after an adjudicatory hearing in which he
participated and was represented by counsel. See, e.g., Matter
of Allegations of Sexual Abuse at E. Park High Sch., 314 N.J.
Super. 149, 159-66 (App. Div. 1998) (finding due process requires
an administrative adjudicatory hearing subject to review by the
courts prior to a defendant's inclusion in the Division of Youth
and Family Service's central registry of child abusers). Rather,
he contends only that his due process rights were violated by the
dismissal of his appeal following the withdrawal of the complaint.
The doctrine of judicial estoppel bars a party from asserting
contradictory positions in the same or subsequent legal
proceeding. Cummings v. Bahr, 295 N.J. Super. 374, 385 (App. Div.
1996). Invocation of the doctrine is appropriate "when a party
advocates a position contrary to a position it successfully
asserted in the same or a prior proceeding." Kimball Intern.,
Inc. v. Northfield Metal Prods., 334 N.J. Super. 596, 606 (App.
Div. 2000) (citation omitted). "The purpose of the judicial
estoppel doctrine is to protect 'the integrity of the judicial
11 A-3485-16T1
process.'" Ibid. (quoting Cummings, 295 N.J. Super. at 387).
"[T]o be estopped [a party must] have convinced the court to accept
its position in the earlier litigation." Id. at 606-07 (alteration
in original) (quoting In re Cassidy, 892 F.2d 637, 641 (7th Cir.
1990)).
"Judicial estoppel is an extraordinary remedy" that "should
be invoked only to prevent a miscarriage of justice." Bhagat v.
Bhagat, 217 N.J. 22, 37 (2014). We have not, "[h]owever, . . .
hesitated to apply it when warranted." Ibid.In moving for dismissal of his initial appeal, defendant
successfully argued that the vacation of the FRO and dismissal of
the complaint rendered his appeal moot. Here, he makes the
opposite argument, contending his appeal from the FRO was not moot
and should not have been dismissed because the removal of his name
from the Registry was dependent on the resolution of his appeal.
Defendant further contends that the dismissal of the appeal he
successfully requested resulted in a deprivation of his due process
rights because it prevented him from challenging the trial court's
issuance of the FRO.
We are constrained to conclude defendant is judicially
estopped from arguing his due process rights have been violated
because he is unable to challenge the issuance of the FRO on
appeal. Defendant's due process argument is founded on an
12 A-3485-16T1
inability to pursue his appeal from the FRO that is solely the
product of his request — his successful motion to dismiss the
appeal from the FRO in the first instance. In our view, to reward
defendant's "inconsistent behavior" by considering an alleged due
process violation based on a circumstance of his own creation
would result in a "miscarriage of justice."6 See Kimball, 334
N.J. Super. at 608 (citation omitted).
Affirmed.
6
We also observe that if there was error in the dismissal of the
appeal, it was invited by defendant. See, e.g., State v. Williams,
219 N.J. 89, 101 (2014) ("The doctrine of invited error does not
permit a defendant to pursue a strategy . . . and then when the
strategy does not work out as planned, cry foul and win a new
trial."). Moreover, defendant was not deprived of his due process
right to appeal from the FRO because he successfully moved for the
appeal's dismissal.
13 A-3485-16T1