D.G. v. J.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

D.G.,

Plaintiff-Respondent,

v.

J.G.,

Defendant-Appellant.

________________________________________

November 12, 2015

Submitted September 30, 2015 Decided

Before Judges Alvarez and Manahan.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-0195-14.

Joseph Spinella, attorney for appellant.

Johnson & Johnson, attorneys for respondent (Sharon E. Johnson, on the brief).

PER CURIAM

Defendant, J.G., appeals from an order denying her request to dissolve a Final Restraining Order (FRO) issued under the "Prevention of Domestic Violence Act" (DV Act) (Act), N.J.S.A. 2C 25-17 to -35. The FRO was entered upon J.G.'s consent after extensive negotiation between counsel with the involvement of the court, and admitted to an act of domestic violence. D.G. subsequently filed a motion seeking to find J.G. in contempt for violating the FRO, and J.G. filed a cross-motion seeking dissolution of the order.

On appeal, J.G. argues the FRO was erroneously entered or, in the alternative, that there was sufficient good cause to dissolve the order. D.G. argues the entry of the FRO was valid and that the court properly denied J.G.'s motion to dissolve the order. As we conclude that the FRO was entered without the requisite findings by the court and without the court advising J.G. of the consequences of the entry of the restraining order, we reverse the judge's order denying J.G.'s motion to vacate the FRO.

The parties were married on March 28, 2011, and have one child. The parties separated in September 2012 after a domestic dispute which lead to J.G. filing for a Temporary Restraining Order (TRO). In October 2012, J.G. filed a complaint seeking dissolution of the marriage on the grounds of irreconcilable differences.

In response to the TRO, D.G. was voluntarily admitted to a Veterans Affairs facility to seek treatment for post-traumatic stress disorder. While D.G. was in this facility, J.G. sent approximately 1,000 emails to him despite his request for no contact.

Upon his release from treatment, D.G. filed for a TRO citing J.G.'s "harassing behavior" in sending the emails as the predicate offense. See N.J.S.A. 2C:33-4. J.G. filed an Order to Show Cause (OTSC) seeking custody of their son and possession of the marital residence. On the return date of the OTSC hearing, the parties entered into a consent order including civil restraints, limiting their communications limited to their son and the sale of the marital residence. In light of the consent order, D.G. did not seek an FRO.

Thereafter, in September 2013, D.G. again filed for a TRO alleging that J.G. continued to harass him by email and text. After the parties agreed to the entry of a consent order, D.G. dismissed the TRO. Less than two months later, D.G. filed for a TRO again claiming harassment in the form of numerous emails from J.G. as the predicate act.

On the return date for the hearing on the FRO, the parties, with the participation of the court, reached an agreement. J.G. would consent to the entry of the FRO, and in exchange D.G. would not oppose J.G.'s motion to relocate to Florida with the child, and abandon his request that J.G. undergo a psychological evaluation.

The following took place on the record between the J.G. and her counsel

Q. [J.G.], I'm showing you a copy of the [c]omplaint for [d]omestic [v]iolence and TRO. You have seen this [c]omplaint, correct?

A. Yes.

Q. And it's dated [November 8, 2013], and your husband filed it against you; is that correct?

A. Yes.

Q. And in it, it references more or less a history of e-mails or texts since October [5], 2013; is that correct?

A. Yes.

Q. And you're familiar with those e-mails and texts?

A. Yes.

Q. And do you agree that you sent that number of texts?

A. Yes.

Q. And do you understand that sending that many texts, regardless of what is in them and I'm not asking you to state if you said anything bad but that it can be considered an annoying communication, a communication that can cause annoyance or alarm and that [D.G.] views it as harassment; do you understand that?

A. Yes.

Q. And do you understand that many texts could be annoying, which is construed as harassment under the statute?

A. Yes.

Q. Are you admitting this voluntarily?

A. Yes.

Q. Did anybody force you to do this?

A. No.

Q. And you have had the opportunity to discuss this with me at length; is that correct?

A. Yes.

Q. And you're doing this of your own free will?

A. Yes.

Q. And you understand, too, that you have the right to a trial on the condition to what [D.G.] has to say, and he can be cross-examined, and you have the right to testify on your behalf or bring witnesses, as well; you understand that?

A. Yes.

Q. And you're not doing that today; do you understand that?

A. Yes.

Q. And you understand that this is a Final Restraining Order that the Judge is going to grant?

A. Yes.

Q. Okay.

After reviewing and clarifying with J.G. and counsel the manner of communication that would be permitted between the parties, the judge said he would sign the order. No findings were made by the court as to the necessity of the entry of the order and no order was signed on that date.1

Over six months later, in addressing the motion and cross-motion that resulted in one order now appealed, the judge noted that "[J.G.] entered a knowing and voluntary admission to committing the domestic violence predicate of harassment and acquiesced to the entry of a [F]inal [R]estraining [O]rder."

In Chernesky v. Fedorczyk, 346 N.J. Super. 34 (App. Div. 2001), this court addressed the procedure to be employed when there is a stipulation or admission to an act of domestic violence.

[A]lthough the Act and [R.] 5:7A allow entry of a final domestic violence restraining order "on a stipulation by defendant to the commission of an act or acts of domestic violence," it is good practice to have the defendant provide a factual basis for the admission that an act of domestic violence has occurred.

Id. at 41.

From our review of the record, we are satisfied J.G.'s counsel's voir dire of J.G. produced an adequate factual basis for the predicate offense of harassment. However, despite J.G.'s counsel questioning her as to the voluntariness of her admission, J.G. was not adequately informed during this process of the admission's "serious consequences." See Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 2006). As we elaborated in Franklin, upon the entry of an FRO, a defendant is subject to fingerprinting, is placed on a central registry, is faced with imprisonment if determined to be in violation of the restraining order, and is subject to family relationships being altered. Id. at 541. Without being informed of the consequences of her admission,2 we hold that J.G.'s admission to the predicate offense was not knowing and therefore was not voluntary.

Further, as we noted in Kamen v. Egan, 322 N.J. Super. 222, 229 (App. Div. 1999), the Act "is intended to assist those who are truly the victims of domestic violence. It should not be trivialized by its misuse in situations which do not involve violence or threats of violence." The Act was intended "to address matters of consequence, not ordinary domestic contretemps . . . ." Corrente v. Corrente, 281 N.J. Super. 243, 250 (App. Div. 1995).

It is for this reason that in adjudicating a domestic violence complaint, the Family Part must perform a two-fold task. "First, the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). Second, a court must determine "whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect a victim from immediate danger or to prevent further abuse." Id. at 127. Here, no specific findings were made whether the domestic order was necessary to protect D.G. from further acts of domestic violence. See Cesare v. Cesare, 154 N.J. 394, 400 (1998) ("court may . . . grant any relief necessary to prevent further abuse.") In the ordinary course we would remand the matter for the purpose of these findings. However, when the absence of this required finding is considered with the absence of any advisement to J.G. of the serious consequences of a restraining order, we are compelled to vacate the FRO.

In light of our holding, we do not need to address the remaining issues raised on appeal.

Reversed.

1 Apparently, counsel for D.G. was to prepare the order but did not do so for several months.

2 We do not find the parties' history of seeking restraining orders against each other to be an adequate substitute for the court's failure to advise J.G. of the consequences of an FRO. Despite the TRO history between the parties, this was the first FRO.