T.M.S. VS. W.C.P. (FV-01-684-07, ATLANTIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4900-15T2

T.M.S.,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

June 5, 2017
v.
APPELLATE DIVISION
W.C.P.,

Defendant-Appellant.
_______________________________

Argued April 27, 2017 – Decided June 5, 2017

Before Judges Lihotz, O'Connor and Mawla.

On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Atlantic
County, Docket No. FV-01-684-07.

Ronald G. Lieberman argued the cause for
appellant (Cooper Levenson, attorneys; Mr.
Lieberman, on the brief).

Respondent has not filed a brief.

The opinion of the court was delivered by

MAWLA, J.S.C. (temporarily assigned)

Defendant W.C.P. appeals from a December 15, 2015 sua sponte

order reinstating a final restraining order (FRO) entered against

him in favor of plaintiff T.M.S. pursuant to the Prevention of

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. He also
appeals from the February 22, 2016 and July 1, 2016 Family Part

orders denying his subsequent applications to vacate the

reinstated FRO. We conclude the trial court abused its discretion

and could not reinstate the FRO absent a motion. Because the

December 15, 2015 order was improvidently entered, we also vacate

the February 22, 2016 and July 1, 2016 orders.

Plaintiff obtained a temporary restraining order (TRO)

against defendant as a result of a domestic violence incident on

October 31, 2006. Defendant admitted to the act of domestic

violence alleged and an FRO was entered on November 29, 2006.

Defendant moved to vacate the FRO pursuant to N.J.S.A. 2C:25-29(d)

and Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).

That motion was denied on May 13, 2008. Subsequently, defendant

filed a second Carfagno application to dismiss the FRO. Plaintiff

did not appear for the hearing. After determining plaintiff had

been properly served with notice of the hearing, the court granted

defendant's unopposed application.

With the FRO vacated, defendant moved for relief from weapons

forfeiture. At the initial weapons forfeiture hearing, there was

a question whether plaintiff was properly notified of the dismissal

of the FRO. On the last day of the hearing, the court, who had

heard the initial Carfagno application, reversed its initial

determination plaintiff was validly served with defendant's

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dismissal application, and vacated the December 8, 2014 dismissal

order, reinstating the FRO. As a result, the weapons forfeiture

matter was dismissed without prejudice.

Along with the sua sponte reinstatement of the FRO, the judge

ordered a Carfagno hearing. A different court conducted this

hearing, and ultimately denied defendant's request to vacate the

FRO. Defendant's motion for reconsideration was denied on July

1, 2016. Defendant now appeals and asserts the following issues:

I. THE TRIAL COURT JUDGE CANNOT VACATE AND
REINSTATE A FRO SUA SPONTE PURSUANT TO THE
PREVENTION OF DOMESTIC VIOLENCE ACT AND DOUBLE
JEOPARDY PRECLUDES REINSTATEMENT OF THE FRO.

II. THE TRIAL COURT FAILED TO CORRECTLY APPLY
AND WEIGH THE CARFAGNO FACTORS.

III. IN DOMESTIC VIOLENCE CASES THE SAME JUDGE
SHOULD BE ASSIGNED TO THE MATTER FROM
BEGINNING TO END.

In Cesare v. Cesare, 154 N.J. 394 (1998), our Supreme Court

addressed the standard of review we apply to domestic violence

matters. The Court stated:

The general rule is that findings by the trial
court are binding on appeal when supported by
adequate, substantial, credible evidence.
Deference is especially appropriate when the
evidence is largely testimonial and involves
questions of credibility.

Because a trial court hears the case, sees and
observes the witnesses, [and] hears them
testify, it has a better perspective than a
reviewing court in evaluating the veracity of
witnesses. Therefore an appellate court

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 should not disturb the factual findings and
legal conclusions of the trial judge unless
[it is] convinced that they are so manifestly
unsupported by or inconsistent with the
competent, relevant and reasonably credible
evidence as to offend the interests of
justice.

[Id. at 411-12 (citations omitted)
(alterations in original).]

"On the other hand, where our review addresses questions of

law, 'a trial judge's findings are not entitled to the same degree

of deference if they are based upon a misunderstanding of the

applicable legal principles.'" N.T.B. v. D.D.B., 442 N.J. Super.

205, 215 (App. Div. 2015) (quoting N.J. Div. of Youth & Family

Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002)). The

appropriate standard of review for conclusions of law is de novo.

S.D. v. M.J.R., 415 N.J. Super. 417, 430 (App. Div. 2010) (citing

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995)).

Pursuant to the PDVA, a court may vacate an FRO upon good

cause shown. N.J.S.A. 2C:25-29(d). Carfagno establishes eleven

factors a court must weigh to determine if a defendant established

the requisite good cause:

(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

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 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.

[Carfagno, supra, 288 N.J. Super. at 435.]1

Here, when the trial court granted defendant's first Carfagno

application, it noted plaintiff did not consent to the FRO's

dissolution because she was not present. However, the facts proved

defendant never violated the FRO because the parties had no reason

to interact; specifically, because they did not have children and

both were in committed relationships. The court made additional

findings, including defendant's prior insobriety partially

contributed to the domestic violence incident, and he had been

sober for nearly eight years and even chaired his sobriety group.

Further, the court noted defendant attended domestic violence

counseling and although physically he was a "big guy," defendant

had health problems that reduced his strength. As to plaintiff's

good faith, the court noted she did not appear in court, and there

1
In Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div.
1998), we stated: "[w]e are in accord with the factor-analysis
approach to an application for dismissal of a final restraining
order set out in the well-reasoned opinion of Judge Dilts in
[Carfagno]."

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were no additional orders in other jurisdictions against

defendant. The court concluded the Carfagno factors weighed in

defendant's favor and the FRO was no longer needed to protect

plaintiff.

When defendant sought the return of his weapons, the question

of whether plaintiff was properly served with defendant's motion

to vacate the FRO was orally raised by the prosecutor. The

assistant prosecutor maintained plaintiff had not been served,

because the court did not have plaintiff's correct address on

file. The assistant prosecutor informed the court plaintiff had

advised her that she never received the order vacating the FRO,

even though it was sent to the address on file from when the court

had entered the FRO. The court noted the issue of service required

review, and ordered a plenary hearing.

On December 14, 2015, counsel for plaintiff appeared in the

weapons forfeiture hearing to be heard on the dismissal of the

FRO. The court reiterated it was unable to confirm whether

plaintiff had been notified of the FRO dismissal hearing, because

the court's address for plaintiff had not been updated.

Importantly, the court noted plaintiff had not filed an application

to reinstate the FRO based on the lack of service of defendant's

Carfagno motion. Notwithstanding these procedural deficiencies,

the trial judge reinstated the FRO and ordered a new Carfagno

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hearing over defendant's objection plaintiff had not filed a motion

to reinstate the FRO.

On appeal, defendant argues the PDVA does not permit a court

to reinstate an FRO on its own motion. He asserts, although a

trial court may revisit an interlocutory order, it cannot sua

sponte review a final order. Relying on our decision in T.M. v.

J.C., 348 N.J. Super. 101, 105-06 (App. Div.), certif. denied, 175

N.J. 78 (2002), defendant argues once a restraining order is

dismissed, the court no longer has jurisdiction to determine

whether a restraining order should be entered. Id. at 105 (holding

a conditional dismissal is improper and stating "[e]ach domestic

violence complaint represents a separate action in which the court

must determine whether the TRO will be converted into an FRO.

. . . [I]f a domestic violence complaint is designated as

'dismissed' the court loses jurisdiction to adjudicate whether an

FRO should be entered."). Therefore, because the December 8, 2014

order dismissing the FRO was final, plaintiff's sole recourse was

to file a motion for relief of judgment pursuant to Rule 4:50-1,

which she did not do. Additionally, defendant argues the court

unfairly shifted the burden of proof to him to seek a dismissal

of the erroneously reinstated FRO, when plaintiff had the burden

to show the FRO should not be dismissed. Defendant concludes the

court exceeded its authority and the intent of the PDVA.

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 In reviewing this issue, we find guidance in the State of New

Jersey Domestic Violence Procedures Manual promulgated by the

Supreme Court in conjunction with the Office of the Attorney

General, Department of Law and Public Safety. First issued in

1991, the manual states: "The New Jersey Domestic Violence

Procedures Manual 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." State

of N.J. Domestic Violence Procedures Manual, Notice at i (2008)

(the manual).2 When a defendant makes a request to dismiss an FRO

pursuant to N.J.S.A. 2C:25-29(d), the manual provides "[t]he court

shall make reasonable efforts to find and notify the plaintiff of

the request for dismissal but unless good cause is shown, the

court cannot hold a hearing on this application unless the

plaintiff is given notice and an opportunity to be heard." The

manual, supra, § 4.19.4, at IV-28.

The manual also addresses reinstatement of a dismissed FRO:

If there is no new act of domestic violence
since the filing of the initial Complaint/TRO
and the plaintiff seeks to reopen a TRO or FRO
which has been dismissed, a notice of motion
must be filed pursuant to Rule 4:50-1.

2
The manual may be found online at
https://www.judiciary.state.nj.us/courts/assets/family/dvprcman.
pdf.

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 Once the application has been filed, the case
is only opened for the purpose of scheduling
the motion hearing. The restraining order is
still dismissed on FACTS and the DVCR.

An application to reinstate the Complaint/TRO
and restraining order does not "activate" the
restraining order. The order is not activated
until and unless both parties are notified,
the court reviews the file, conducts a
hearing, makes findings and then reinstates
the order.

At the hearing, the judge may reinstate the
order or let the dismissal stand. If
reinstated, the status of the order would be
"active" in FACTS and on the DVCR.

[Id. § 4.19.5, at IV-28.]

Due process is a fundamental right accorded to both parties

under the PDVA. As our Supreme Court stated:

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." . . .
[D]ue process forbids the trial court "to
convert a hearing on a complaint alleging one
act of domestic violence into a hearing on
other acts of domestic violence. . . ."

[J.D. v. M.D.F., 207 N.J. 458, 478 (2011)
(quoting H.E.S. v. J.C.S., 175 N.J. 309, 321-
22 (2003) (quoting McKeown-Brand v. Trump
Castle Hotel & Casino, 132 N.J. 546, 559
(1993)).]

With these procedures and principles in mind, we consider

defendant's arguments. Here, at the initial hearing to dismiss

the FRO, the court determined plaintiff had been properly served.

The question of service did not arise until the first hearing on

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the weapons forfeiture matter. Then, on the third day of the

weapons forfeiture matter, counsel for plaintiff spontaneously

appeared to assert plaintiff had never been served with the motion

to dismiss the FRO. The court was unable to determine whether it

served plaintiff notice by regular and certified mail, but observed

there was no indication the regular mail had been returned. The

court further observed plaintiff had made no effort to update her

contact information with the court.

In our view, the court overlooked fundamental due process

principles by sua sponte reinstating the FRO in the ancillary

weapons forfeiture matter. If plaintiff challenged the order

dismissing the FRO, she was required to file a motion for relief

pursuant to Rule 4:50-1 in the domestic violence matter, so

defendant could be heard and there, address the issue of service.

The manual, supra, § 4.19.5, at IV-28. In so finding, we do not

inflexibly adhere to the manual requiring a Rule 4:50-1 motion.

Rather, the facts of this case highlight why a formal application

is mandatory: defendant was entitled to be heard on the issue of

whether service was proper.

Further, Rule 5:4-4(a) and (b)(1)-(2) state:

(a) Manner of Service. Service of process
within this State for Family Part summary
actions, including initial complaints and
applications for post-dispositional relief,
shall be made in accordance with Rule 4:4-4,
Rule 5:9A-2, or paragraph (b) of this rule.

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For initial complaints, substituted or
constructive service of process outside this
State may be made pursuant to the applicable
provisions in Rule 4:4-4 or Rule 4:4-5.
Family Part summary actions shall include all
non-dissolution initial complaints as well as
applications for post-dispositional relief,
applications for post-dispositional relief
under the Prevention of Domestic Violence Act,
and all kinship legal guardianship actions.
Applications for post-dispositional relief
shall replace motion practice in Family Part
summary actions. The court in its discretion,
or upon application of either party, may
expand discovery, enter an appropriate case
management order, or conduct a plenary hearing
on any matter.

(b) Service by Mail Program. Service of
process for Family Part summary actions may
be effected as follows:

(1) Service by Mail. The Family
Part shall mail process
simultaneously by both certified
and ordinary mail to the mailing
address of the adverse party
provided by the party filing the
complaint or application for post-
dispositional relief.

(2) Effective Service. Consistent
with due process of law, service by
mail pursuant to this rule shall
have the same effect as personal
service, and the simultaneous
mailing shall constitute effective
service unless there is no proof
that the certified mail was
received, or either the certified or
the regular mail is returned by the
postal service marked "moved,
unable to forward," "addressee not
known," "no such number/street,"
"insufficient address," "forwarding
order expired," or the court has

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 other reason to believe that service
was not effected. Process served by
mail may be addressed to a post
office box. Where process is
addressed to the adverse party at
that person's place of business or
employment, with postal instruct-
tions to deliver to addressee only,
service will be deemed effective
only if the signature on the return
receipt appears to be that of the
adverse party to whom process was
mailed.

Pursuant to Rule 5:4-4(b)(1), service must be effectuated via

certified and regular mail in summary proceedings involving the

Act. Under the PDVA, a domestic violence victim's address and

location remains confidential from a defendant. N.J.S.A. 2C:25-

26(c). Therefore, the clerk of the Family Part effectuates service

by mail. When a question arises, Rule 5:4-4(b)(2) provides proper

service may be found if there is no proof the certified or regular

mail is returned. Furthermore, "[n]ot every defect in service of

process constitutes a denial of due process qualifying defendant

for relief from the [] judgment." Pressler & Verniero, Current

N.J. Court Rules, comment 5.4.2 on R. 4:50-1(d) (2017).

The same principle applies here. One year after an initial

finding of valid service, the court was unable to determine whether

service was effected via certified and regular mail as required

under Rule 5:4-4(b)(1). However, we note there was no indication

the regular mail had been returned. Also, defendant pointed out

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that, even though plaintiff had been aware the FRO was vacated as

early as September 2015, she made no application to the court to

reinstate the FRO.

We reverse the December 15, 2015 sua sponte order reinstating

the FRO, because applications to reopen a dismissed TRO or FRO

must be made in the underlying domestic violence matter, not an

ancillary matter, and must be made by formal motion pursuant to

Rule 4:50-1. This practice will protect domestic violence victims

by providing them with formal notice where there is an application

to vacate the orders of protection, and assure due process for

defendants.3 We do not visit defendant's arguments regarding the

second trial judge's Carfagno findings, because the February 22,

2016 and July 1, 2016 orders the second trial judge entered are

now vacated.

Addressing defendant's remaining arguments, he asserts a

domestic violence matter can be heard by only one judge. He claims

he was prejudiced because two different judges heard the

applications in this matter. Defendant cites to the Conference

of Family Presiding Judges Presents the Family Division Report on

Best Practices and Standardization to the Judicial Council,

3
Although it is not an issue raised by defendant, we suggest the
Conference of Family Presiding Judges consider promulgating formal
operational guidance requiring plaintiffs to periodically update
their address with the Family Division.

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General Recommendation 1 at 30 (July 30, 1999), reciting "[t]he

underlying philosophy for Family Division case processing should

be one judge/one case. . . ."

The principle of "one-judge one-case" is laudable; however,

we decline to interpret this recommendation as a mandate. This

is especially so where trial judges are frequently rotated between

divisions and calendar assignments, the domestic violence calendar

is high volume, and domestic violence cases are summary in nature

and must be adjudicated within ten days of filing of the complaint.

See N.J.S.A. 2C:25-29(a). Rather, we rely on N.J.S.A. 2C:25-29(d)

which provides:

Upon good cause shown, any final order may be
dissolved or modified upon application to the
Family Part of the Chancery Division of the
Superior Court, but only if the judge who
dissolves or modifies the order is the same
judge who entered the order, or has available
a complete record of the hearing or hearings
on which the order was based.

Here, there is no indication the court which handled the latest

Carfagno hearing did not have access to a copy of the complete

record.

Lastly, defendant claims he was subjected to "double

jeopardy" because a Carfagno review was conducted twice. The

Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution protects against a second prosecution for the same

offense after a conviction or an acquittal, and prohibits multiple

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punishments for the same offense. State v. Widmaier, 157 N.J.

475, 489-90 (1999). A complaint brought under the PDVA is a civil

action separate and distinct from a criminal action. State v.

Brown, 394 N.J. Super. 492, 504 (App. Div. 2007). Therefore, a

double jeopardy defense does not apply to the PDVA.

Reversed.

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