New Jersey Divorce and Family Lawyer Blog
On June 5, 2017 the Appellate Division approved for publication its opinion in the matter of TMS-v-WCP, A-4900-15T2, which involves reinstatement of a final domestic violence restraining
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order.
In 2006 Plaintiff obtained a temporary restraining order against the defendant. After defendant admitted to the act of domestic violence that had been alleged a final restraining order was entered.
Defendant later filed an application seeking to vacate the final restraining order pursuant to the factors in Carfagno v. Carfagno, 288 N.J. Super. 424, 430 (Ch. Div. 1995) and New Jersey statute, N.J.S.A. 2C:25-29(d). Pursuant to Carfagno and New Jersey statute N.J.S.A. 2C:25-29(d) , a court may dissolve or modify a final restraining order “upon good cause shown”. A court may dissolve the restraining order where there is a “change in circumstances [whereby] the continued enforcement of the injunctive process would be inequitable, oppressive, or unjust, or in contravention of the policy of the law.”
In order to ensure the protection of the victim of domestic violence, the following Carfagno factors are considered when the court determines whether to dissolve a final domestic violence restraining order: (1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant’s request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court.
Plaintiff did not appear at the Carfagno hearing, so she did not consent or object to vacating the restraining order. The court found that Defendant had established good cause under the Carfagno factors to vacate the final restraining order. Defendant never violated the restraining order, and no restraining orders were entered against him in other jurisdictions. The Defendant and the Plaintiff no longer had any reason to interact, and they had no children. They were both in other relationships. Defendant’s lack of sobriety contributed to him engaging in acts of domestic violence but since that time he not only attended domestic violence counseling, but he had been sober for eight years and was a leader of a sobriety group. The court also noted that Defendant had present health problems that reduced his physical strength. The Court concluded that the final restraining order was no longer needed to protect the plaintiff and the final restraining order was dismissed.
Defendant then sought relief from weapons forfeiture now that the restraining order was dissolved. Plaintiff did not appear at this hearing either, though her attorney did – three days into the hearing to assert that Plaintiff had never been served with the order dismissing the final restraining order. The court’s file apparently did not have a current address for the plaintiff, though the court’s attempt to serve the order at that address was never returned to the court. Plaintiff did not file a motion seeking relief from the order dismissing the restraining order. The judge, however, reinstated the final restraining order sua sponte, meaning based on the court’s own motion, and not based on the application of a litigant.
Defendant appealed, arguing that the Prevention of Domestic Violence Act does not allow a court to reinstate a final restraining order sua sponte, and that once the restraining order is dismissed the court lacked jurisdiction to determine whether a restraining order should be entered, citing T.M. v. J.C., 348 N.J. Super. 101 (App. Div. 2002)(holding that conditional dismissal of a final restraining order is improper and that each domestic violence complaint is a separate action in which the court has to determine if a temporary restraining order will be converted into a final restraining order). Therefore, defendant argued, for the final restraining order to be reinstated, Plaintiff had to file a motion seeking reinstatement.
The Appellate Division reversed the decision of the family court. The appellate court examined the domestic violence procedures manual issued by the Supreme Court, which states that when a Defendant requests to dismiss a final restraining order, the court is to make “reasonable efforts” to find and notify the plaintiff, and that unless there is good cause, a hearing cannot be held unless the plaintiff has notice. The manual also states that if there is no new act of domestic violence and the plaintiff wants to reopen a dismissed restraining order, a motion has to be filed pursuant to Rule 4:50-1, after which the restraining order is still dismissed until the application is heard. At the hearing, the judge can decide whether to reinstate the final restraining order or not.
Beyond what the manual states as to procedure, the Appellate Division found that the family court overlooked fundamental rights to due process by reinstating the final restraining order without Plaintiff having filed a motion herself seeking relief from the dismissal order pursuant to Rule 4:50-1, which is mandatory, so that the Defendant could be heard and so that the issue of service at Plaintiff’s address could be addressed. Additionally, pursuant to Rule 5:4-4(b)(1), service of the dismissal order had to be effectuated by certificated and regular mail. The plaintiff’s address had to remain confidential to the Defendant as required by the Prevention of Domestic Violence Act in order to protect domestic violence victims. Therefore, the court’s clerk had to effectuate service by mail. Proper service may be found even where there is no proof that either the certified or regular mail was returned. Not all defects in service constitute denial of due process. Here, service was attempted on Plaintiff by mail, and the mail was not returned. Plaintiff was aware the final restraining order was vacated in September, 2015 but she never made an application to reinstate the final restraining order dismissed in September, 2015.
The Appellate Division addressed Defendant’s complaint about more than one judge being assigned the domestic violence matter, which he claimed prejudiced him. The Appellate Division declined to direct a one judge/one case rule given that judges frequently rotate between divisions and calendar assignments, and given the high volume nature of the domestic violence calendar.
Finally, the Court addressed Defendant’s claims that he was subjected to “double jeopardy” because there were two Carfagno hearings. The Appellate Division disagreed because the Double Jeopardy Clause of the Fifth Amendment protects against a second prosecution for the same offense after a conviction or acquittal and prohibits multiple punishments for the same offense. Complaints under the domestic violence statute, however, are civil actions, not criminal ones and therefore there is no double jeopardy defense.