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NOT FOR PUBLICATION WITHOUT THE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.

4 A-5742-14T2
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

5 A-5742-14T2
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.

6 A-5742-14T2
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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