J.S. v. D.S.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5742-14T2
J.S.,
Plaintiff-Respondent, APPROVED FOR PUBLICATION
December 5, 2016
v.
APPELLATE DIVISION
D.S.,
Defendant-Appellant.
_______________________________________
Submitted September 20, 2016 – Decided December 5, 2016
Before Judges Fisher, Ostrer and Leone.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Atlantic County, Docket No. FV-01-1361-15.
Adinolfi and Lieberman, P.A., attorneys for
appellant (Ronald G. Lieberman, of counsel
and on the brief).
Marc J. Nehmad, attorney for respondent.
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this appeal, defendant argues a domestic violence final
restraining order (FRO) was void upon entry because the judge
did not find the occurrence of an act of domestic violence. A
few days before the scheduled date for oral argument, the
parties advised us that they had agreed to dismiss this appeal
and allow for the perpetuation of the FRO. Notwithstanding their
agreement, the interests of justice require a disposition of the
appeal's merits.
The underlying circumstances may be briefly summarized.
Plaintiff filed a complaint, pursuant to the Prevention of
Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, and
obtained a temporary restraining order against defendant, her
husband. At the final hearing, counsel advised the trial judge
that the parties had reached an agreement, which called for
defendant's consent to an FRO in exchange for plaintiff's
consent to defendant's exclusive possession of the marital home
pending further order in the matrimonial proceedings. The
parties were then sworn, and the judge briefly asked whether
they understood and voluntarily consented to the agreement. The
judge neither asked plaintiff to describe the alleged act of
domestic violence nor asked defendant to acknowledge he
committed an act of domestic violence. Satisfied the agreement
was voluntarily reached, the judge entered the FRO in question.
Defendant filed a timely appeal, arguing, among other
things, that the judge mistakenly issued the FRO without taking
testimony about the allegations, without finding an act of
domestic violence occurred, and without determining plaintiff
required protection from defendant. See, e.g., State v. D.G.M.,
439 N.J. Super. 630, 635 (App. Div. 2015).
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Prior to the scheduled date for oral argument in this
court, the parties submitted a stipulation of dismissal. In
light of the issues posed by this appeal, we requested greater
detail about their settlement and were advised by counsel that
the parties had resolved their matrimonial disputes and
defendant had consented to a dismissal of the appeal to allow
the FRO to "remain in full effect." In response, we alerted the
parties to our concern about leaving an FRO in effect without
considering the argument it was void ab initio. The parties
were invited to file a motion arguing that we should dismiss the
appeal without deciding the appeal's merits. The parties were
also told that if a motion was not filed by October 28, 2016, we
would consider ruling on the appeal's merits. No motion was
filed.
We do not lightly disregard private parties' desire to
cease litigating their disputes. Our courts often say that
"[s]ettlement of litigation ranks high in our public policy."
Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting Jannarone v.
W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied,
35 N.J. 61 (1961)). But, as we recently observed in A.M.C. v.
P.B., __ N.J. Super. __, __ (App. Div. 2016) (slip op. at 30),
the judiciary possesses "an independent duty" to remediate any
"systematic failures" in the implementation of the Act. In
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short, in domestic violence matters, judges are more than mere
referees. Cf. State v. Garron, 177 N.J. 147, 180 (2003).
For example, it is not uncommon for domestic violence
plaintiffs to seek dismissal of their actions either before or
after entry of an FRO. In those instances, the Act obligates a
trial court to examine the plaintiff's reasons for seeking
dismissal by conducting a searching inquiry into the plaintiff's
understanding of the consequences for the purpose of
ascertaining whether, among many other things,1 the plaintiff has
knowingly and freely sought dismissal. See Kanaszka v. Kunen,
313 N.J. Super. 600, 605 (App. Div. 1998). As part of this
inquiry, courts must ensure dismissal is not part of an
impermissible swap of promises. See Domestic Violence Manual,
supra, § 4.19.7 (prohibiting "conditional dismissals" – i.e., a
dismissal conditioned upon "either party performing any specific
act or upon the occurrence of any particular event" – regardless
of the agreement of the parties).2 Public policy precludes the
1
The New Jersey Domestic Violence Procedures Manual, adopted by
our Supreme Court and the Attorney General in 1991, provides an
extensive discussion about the inquiry that should be made by
the court and its personnel in considering a plaintiff's request
for a dismissal of the action. See N.J. Domestic Violence
Procedures Manual, § 4.19 (amended 2008).
2
We do not have before us the propriety of a dismissal of a
domestic violence complaint when conditioned upon entry of civil
restraints in a matrimonial action. See Domestic Violence
Manual, supra, § 4.19.2.
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entry, continuation, or dismissal of an FRO as a bargaining chip
in the settlement of other disputes. Consequently, our
appellate courts must also be wary of settlements in such
matters.
We are also mindful that the Act imposes considerable
obligations on law enforcement and that an FRO is not merely an
injunction entered in favor of one private litigant against the
other. See State v. Brito, 345 N.J. Super. 228, 231 (App. Div.
2001) (recognizing that, in a prosecution for contempt of an
FRO, "the State is the party in interest, not the complainant").
A violation of an FRO has a tendency to trigger law enforcement
involvement and may ultimately lead to criminal prosecution. And
the entry of an FRO imposes continuing obligations upon the
Judiciary, which is required by the Act to "establish and
maintain a central registry of all persons who have had domestic
violence restraining orders entered against them." N.J.S.A.
2C:25-34. The potential in such matter for the future
involvement of the courts, law enforcement, and prosecutors,
counsels against blithely acceding to the perpetuation of a
groundless FRO.
For these reasons, we are compelled in this unusual
circumstance to ignore the parties' stipulation of dismissal and
settlement agreement. In considering the appeal on its merits,
we are not exercising a roving jurisdiction to right wrongs the
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parties have no interest in vindicating. And, in so proceeding,
we do not extend our reach beyond what is reasonably before us.
We have subject matter jurisdiction because defendant filed an
appeal; whether we should dismiss the appeal prior to
adjudication on the parties' joint request lies within our sound
discretion. Rule 2:8-2 declares that, "upon the filing of a
stipulation by the parties agreeing thereto," the court "may" –
not must – dismiss the appeal. Accordingly, we are not required
to dismiss the appeal. See, e.g., Leeds v. Harrison, 9 N.J. 202,
213 (1952) (recognizing "'[m]ay' is a permissive and not an
imperative verb"). In light of the strong public policies
underlying the Act, we choose to exercise our discretion to
consider the appeal on its merits. We have an obligation to
ensure the FRO was legitimately entered and should not permit
its wrongful perpetuation simply because it may have become a
useful chip in the settlement of the parties' matrimonial
disputes.
Having rejected the parties' request that we dismiss the
appeal and having resolved to consider the merits of this
appeal, we agree with what defendant previously argued: the FRO
can no longer stand. A domestic violence final restraining order
may not be entered by consent or without a factual foundation.
See Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div.
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2006).3 Because the trial judge mistakenly failed to elicit a
factual foundation, failed to find domestic violence occurred,
and failed to determine whether plaintiff required protection as
a result of defendant's conduct, we vacate the FRO.
The FRO is vacated, the TRO is reinstated, and the matter
remanded for a final hearing in conformity with this opinion. 4
We do not retain jurisdiction.5
3
We do not mean to suggest every domestic violence action must
be tried to a conclusion or that a defendant may not accede to
relief sought by a plaintiff. Nothing prevents a defendant from
declining to defend against such an action or from acknowledging
under oath the commission of an act of domestic violence. The
consequences, however, are too serious to permit entry of an FRO
merely by consent. Before entering an FRO, a court must ensure
there exists an adequate factual foundation and that the
defendant understands the consequences of the decision not to
contest the matter. A court must also find that the FRO is
necessary "to protect the plaintiff from an immediate danger or
to prevent further abuse." Silver v. Silver, 387 N.J. Super.
112, 127 (App. Div. 2006).
4
We reject defendant's contention that the matter be handled by
a different judge.
5
The continuation of the FRO was part of the parties' global
settlement of their matrimonial disputes. We express no view
about the effect of today's decision on their settlement
agreement.
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