New Jersey Divorce Lawyer Blog
There is no shortage of cases concerning NJ Restraining Orders, and the most recent appellate case on this topic just came down on June 5. In T.M.S. v. W.C.P., the issue was whether the court abused its discretion by reinstating a final restraining order against the plaintiff, T.M.S, sua sponte, or on its own. The appellate court held that the lower court did in fact abuse its discretion and denied the defendant due process under the law. It reversed the court’s ruling. The (somewhat confusing) procedural facts are as follows:
A temporary restraining order (TRO) had been put in place due to domestic violence which TMS had admitted to. A final restraining order (FRO) was implemented, which TMS moved to vacate. He was denied. He filed again to dismiss the FRO, and WCP did not appear for the hearing, despite being properly served with notice. As a result, the court granted the unopposed application to vacate the FRO. With this victory, defendant then moved for relief from having to forfeit his weapons. At this hearing, there was a question of whether plaintiff was actually properly notified of the original dismissal of the FRO, and so, the court reinstated the FRO (and so, the weapons forfeiture matter was dismissed).
In determining whether a final NJ restraining order can be dismissed, the court relies on eleven factors from the Carfagno case if there is good cause for dismissal. The factors are: (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 NJ restraining order because she wasn’t there – but the trial court did note that the defendant had never violated the order, defendant’s consistent sobriety, attended domestic violence counseling, and suffered from health problems that made it difficult for him to inflict any violence, even if he had wanted to. Therefore, on the basis of these factors, the judge determined that the FRO was no longer required to protect the plaintiff.
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.
In this case, the plaintiff could not consent to dismissing the final
Over a year later, at a subsequent weapons forfeiture hearing, on the third day of said hearing, the prosecution abruptly mentioned that plaintiff had not been served by the motion to vacate FRO in the other domestic violence action, because her appropriate address was not on file. The court did not find that the notice sent regular mail had ever been returned. The court noted that plaintiff had not filed an application to reinstate the FRO due to lack of service – something the appellate court took special note of. There was no evidence that plaintiff had made any effort to keep her contact information update with the court or with the state. In spite of this, the court reinstated the application.
On appeal, TWS argues that once a NJ restraining order is dismissed, the court no longer has jurisdiction to determine whether a restraining order should be entered. The appellate court looked at the State of New Jersey Domestic Violence Procedures Manual on the issue of dismissing an FRO, and examined the requirements for due process. At minimum, due process demands that a party receive notice defining the issues with an adequate time to respond. Furthermore, due process prohibits a court from converting a hearing on a complaint on one particular act of domestic violence into another hearing on other acts of violence. By its actions, the appellate court held that the court overlooked fundamental rules of due process by reinstating the FRO sua sponte. Plaintiff is required to file a motion for relief for lack of service if she had desired to contest the dismissal of the FRO. This is because defendant is entitled to present a case on the issue of whether service had been properly issued. Furthermore, applications to dismiss a final NJ restraining order must be made in the underlying matter, and not in some ancillary case, in order to protect victims of domestic violence when there is an application of dismissal of an FRO.
Another matter facing the court presented by the defendant was that a domestic violence matter can be heard only by one judge throughout the life of the case. At bar, two different judges heard the applications, and insists that there should be one judge per case. The appellate court agrees in principle – that in an ideal world, one judge per case should be the rule. However, given the limited resources of the justice system, particularly with family court and domestic violence dockets, this is simply an impossible standard. Domestic violence cases are summary in nature – the law requires a judgment to be issued within ten days of filing the complaint, in order to protect both domestic violence victims and preserve due process for defendants. This complaint from defendant was dismissed.
Finally, defendant asserted that he was subjected to double jeopardy because he had to undergo a hearing for dismissal of a final NJ restraining order twice. Essentially, the court found this argument had no merit. The double jeopardy clause of the Constitution prevents someone being prosecuted for the same offense twice after either a conviction or an acquittal. It also prohibits multiple punishments for the same offense. In the instant case, the domestic violence act allows for complaints to be brought in a civil action, separate and distinct from a criminal case. Therefore, the double jeopardy does not apply. If you have any questions concerning domestic violence, call the Law Offices of Peter Van Aulen for a free initial consultation at (201) 845-7400.
