Notice and opportunity to be heard is one of the most fundamental tenants of due process in this country. Every litigant, no matter how small the case, has the right to have his or her “day in court.” As we learn in the recent Appellate Division decision of T.M.S. v. W.C.P., that applies equally to a plaintiff – the party bringing the action – and to a defendant – the party defending against the action.
Under the PDVA, a Court may enter a restraining order pursuant to a complaint to protect a victim of domestic violence. Following a hearing, the court will issue a Final Restraining Order (“FRO”) if it finds that the victim was subjected to domestic violence by someone with whom the victim has a domestic relationship. The victim must prove that an act of domestic violence occurred and that a restraining order is necessary to protect the victim from immediate danger or future acts of domestic violence.
Although restraining orders may be termed “final” that does not mean that they can never be vacated. Under the PDVA, a court may vacate an FRO upon good cause shown. N.J.S.A. 2C:25-29(d).
The case of Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995) establishes eleven factors a court must weigh to determine if a defendant established the requisite good cause to vacate an FRO:
(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.
In T.M.S., a final restraining order was entered against the defendant on November 29, 2006. In 2008, the defendant moved, unsuccessfully, to vacate the FRO pursuant to N.J.S.A. 2C:25-29(d) and Carfagno. Subsequently, defendant filed a second Carfagno application to dismiss the FRO. The plaintiff did not appear for the hearing. After determining plaintiff had been properly served with notice of the hearing, the court granted the defendant’s unopposed application.
The Court made the following findings in support of its conclusion:
- Plaintiff did not consent to the FRO’s dissolution because she was not present.
- 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.
- 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.
- Defendant attended domestic violence counseling.
- Although physically Defendant 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 were no additional orders in other jurisdictions against defendant.
With the FRO vacated, defendant moved for relief from the weapons forfeiture, which requires a defendant to surrender his or her weapons upon the entry of the restraining order. At the initial weapons forfeiture hearing, a question arose for the first time as to whether plaintiff was properly notified of the dismissal of the FRO.
On the last day of the hearing, on December 15, 2015, the court, who had heard the initial Carfagno application, reversed its initial determination plaintiff was validly served with defendant’s dismissal application, and vacated the December 8, 2014 dismissal order, reinstating the FRO. As a result, the weapons forfeiture matter was dismissed. The Court determined that an old address on file for the plaintiff was used and it was questionable as to whether she still remained resident there.
While this case certainly calls into question the plaintiff’s notice and opportunity to be heard on the Carfagno hearing vacating the FRO, the Court focused on the Court’s violations of the defendant’s due process here. On appeal, defendant argued the PDVA does not permit a court to reinstate an FRO on its own motion. He asserted, although a trial court may revisit an interlocutory order, it could not sua sponte review a final order.
The Appellate Division agreed with the defendant and reinstated the dismissal. In doing so, the Appellate Division focused primarily on the fact that, by sua sponte reinstating the FRO in the ancillary weapons forfeiture matter, the court overlooked fundamental due process principles. If plaintiff challenged the order dismissing the FRO, she was required to file a motion for relief in the domestic violence matter, so defendant could be heard and there, address the issue of service.
The Court concluded that requiring plaintiff to reopen a dismissed TRO or FRO must be made in the underlying domestic violence matter, not an ancillary matter, and further requiring such requests to be made by formal application equally will (a) protect domestic violence victims by providing them with formal notice where there is an application to vacate the orders of protection, and, (b) assure due process for defendants.
In a footnote of the case, the Appellate Division also suggested the Conference of Family Presiding Judges consider promulgating formal operational guidance requiring plaintiffs to periodically update their address with the Family Division. We will let you know if this occurs.
Eliana T. Baer is a contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or firstname.lastname@example.org.