KATHLEEN MANDRIK v. PAUL FERRARA

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0825-06T50825-06T5

KATHLEEN MANDRIK,

Plaintiff-Respondent,

v.

PAUL FERRARA,

Defendant-Appellant.

______________________________

 

Submitted August 7, 2007 - Decided

Before Judges Sabatino and Baxter.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, FV-01-1807-05.

Jack Venturi & Associates, attorneys for appellant (Jef Henninger, on the brief).

Respondent did not file a brief.

PER CURIAM

Defendant Paul Ferrara appeals an August 16, 2006 order of the Family Part denying his motion to vacate a Final Restraining Order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, previously entered against him in June 2005. We reverse and remand for a trial on the merits, because of what the court acknowledged was a "procedural imperfection" in the prior entry of the FRO.

The factual record is sparse. Plaintiff Kathleen Mandrik and defendant cohabitated together in an apartment in Somers Point. In the early morning hours of June 6, 2005, plaintiff telephonically applied to the municipal judge in Somers Point for a temporary restraining order (TRO) against defendant. Her TRO application alleged that at 2:40 a.m. that same day, defendant "continually tried [to] gain entry into the couple['s] apartment." This caused plaintiff to be sufficiently "scared [so that she] would not allow the defendant to enter." According to plaintiff, "[a]t that time [defendant] attempted to pry open the front door [and] front slider . . . ." He allegedly "ripped down the exterior phone lines and then broke the rear door window to gain entry into the apartment." Defendant "then began to scream and yell at the plaintiff."

Based upon plaintiff's ex parte allegations, the municipal judge entered the requested TRO, and granted plaintiff exclusive possession of the apartment. The TRO was served by police officers upon defendant, shortly thereafter, at 4:15 a.m. The TRO summoned defendant to appear for a final hearing in the Family Part on June 16, 2005.

Plaintiff and defendant, both without counsel, appeared in the Family Part for the FRO hearing on June 16, 2005. Evidently, before their case was called, the parties were present in the courtroom when the judge heard other cases on the docket and made some comments about the legal significance of an FRO.

When the present case was eventually reached, neither plaintiff nor defendant was sworn. Instead, the judge had a very brief colloquy with defendant, in which he summarily consented to the entry of constraints. The following is the entire proceeding:

THE COURT: This is Kathleen [Mandrik] v. Paul [Ferrara]. Docket Number is FV-01-1807-05. There was a temporary order on 6/5.

Are you seeking to have the order made final?

MS. MA[N]DRIK: Yes.

THE COURT: Do you object to the entry of that restraining order, sir?

MR. FERRARA: No, I don't, Your Honor.

THE COURT: Did you hear what I said to the other defendants --

MR. FERRARA: Yes, I did, Your Honor.

THE COURT: I'm going to make a finding then that you committed an act of domestic violence and impose a penalty on you.

If you violate the restraining order and you're convicted, you could serve up to six months in a county jail.

MR. FERRARA: Yes, Your Honor.

THE COURT: Fine. On that basis, I will enter the final restraining order, defendant offering no [de]fense. And I make a finding that the allegations constitute domestic violence.

You're not to have any contact with the plaintiff, be in touch with her for any reason. If you violate that restraining order, you're subject to arrest. If convicted, you can serve up to six months in the county jail.

When will you pay the $50, sir?

MR. FERRARA: I'll pay today, Your Honor.

THE COURT: Fifty dollars will be paid today.

He needs to be fingerprinted and photographed.

Is there any other relief you're seeking at this time, ma'am?

MS. MA[N]DRIK: No, Your Honor.

THE COURT: The complaint stated criminal mischief. Was there damages done that have to be paid for?

MS. MA[N]DRIK: Yes, Your Honor, there was. There was -- there was damage done to the backdoor, but I don't have any receipts. And I heard you say to somebody else --

THE COURT: If you collect them and there's a repair, then you can bring an application to the Court asking him to be responsible for the cost of the repair. But I need the records, and you have to make that application.

MS. MA[N]DRIK: Okay. Thank you.

Your Honor, I have a question for you.

There's a charge pending against him for breaking of a restraining order.

THE COURT: I have no idea, ma'am.

MS. MA[N]DRIK: Okay.

THE COURT: That's a criminal process. It does not come through this court.

MS. MA[N]DRIK: Okay. No problem. Thank you.

THE COURT: Okay.

If you'll have a seat outside, ma'am, you'll get a copy of the order.

MS. MA[N]DRIK: Okay.

Consequently, the judge issued that day an FRO against defendant. The FRO contains findings that defendant committed harassment against plaintiff, and that there was "good cause to believe that plaintiff's life, health or well-being have been and are endangered by defendant's act(s) of violence." In the "Comments" section of the FRO, the court noted that defendant had appeared pro se and "offered no defense."

The FRO included the customary provisions prohibiting defendant from having any further contact with plaintiff, including at her residence or place of employment, and prohibiting him from possessing weapons. Plaintiff was granted ongoing exclusive possession of the parties' apartment. No other ancillary relief was entered.

Subsequently, after consulting with several attorneys, defendant moved in July 2006 to vacate the FRO for lack of an adequate factual foundation. The motion was heard on August 16, 2006, coincidentally by a Family Part judge different than the judge who had issued the FRO in June 2005. Plaintiff appeared, pro se, in opposition to the motion. Defendant, this time, had counsel.

After hearing the arguments, the court denied the motion to vacate the FRO. The court recognized that the June 16, 2005 hearing was not founded upon any sworn testimony, nor any admissions by defendant of committing specific acts of domestic violence. Nor does the transcript of the FRO proceeding reflect that defendant was made directly aware of the adverse and long-lasting consequences of having an FRO entered against him. In spite of what the court termed as these "procedural" flaws, the court declined to vacate the FRO. The court ruled that defendant's motion was untimely under R. 4:50-1 because it had not been made within a year, and that no exceptional circumstances were present that could justify such relief at this juncture.

We have a less indulgent view of the procedural circumstances. Our courts have "consistently recognized that the issuance of an FRO has serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as a serious crime against society." Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App. Div. 2006). Because of those many serious consequences, a domestic violence restraining order "may be issued only after a finding or an admission is made that an act of domestic violence is committed by that person." Ibid. Accordingly, "a defendant may not consent to the entry of [an FRO], and a court may not enter one unless there is a finding of domestic violence by the court." Id. at 541-42.

Here, although the court did include a brief finding in the FRO itself that defendant had committed "harassment" against plaintiff, there was no evidence presented to support such a finding. Plaintiff did not testify, even briefly, and no photographs or other proofs were adduced. The court simply accepted defendant's unsworn consent to the entry of the FRO, which is inadequate under Franklin and the requirements of the statute. Moreover, we have some doubt about the informed nature of defendant's consent, and whether he fully understood from his attendance in court during other cases the serious ramifications of an FRO. Defendant was not asked about whether he was thinking clearly or under the influence of any medication or other substances, or whether he first wished to consult with an attorney.

All of these problems led the trial court to recognize subsequently, as we do, that the entry of the FRO was procedurally infirm. However, we disagree with the court that defendant's effort to set aside the FRO was too little or too late. We do note that defendant did not move for relief from the FRO until slightly more than a year after its entry, thereby making certain grounds for relief from judgment under subsections (a) ("mistake, inadvertence, surprise, or excusable neglect"), (b) ("newly discovered evidence"), and (c) ("fraud") of R. 4:50-1 inapplicable. See R. 4:50-2. However, defendant's application is still not time-barred under subsections (d) (voidness) or (f) ("any other reason justifying relief from the operation of the judgment or order"). Additionally, defendant has a statutory right, not restricted by a one-year time bar, to seek to dissolve domestic violence restraints for good cause. See N.J.S.A. 2C:25-29(d); Carfagno v. Carfagno, 288 N.J. Super. 424, 433 (Ch. Div. 1995). Defendant's failure to deny the allegations of domestic violence in his motion should not deprive him of a fair opportunity to show that restraints are either unnecessary or were not warranted in the first place.

For these reasons, we vacate the FRO and remand for further proceedings consistent with this opinion. Because we cannot tell from the record, particularly given plaintiff's non-participation in the appeal, whether or not restraints are needed in the interim, we reinstate the TRO until such time as plaintiff can be noticed and the Family Part can expeditiously re-list the case for final hearing.

Vacated and remanded. We do not retain jurisdiction.

 

Plaintiff has not participated in this appeal, which could but not necessarily suggest that she may no longer need the protections of the restraints issued by the trial court. In any event, she will have the opportunity to advocate her current position on remand.

We have not been furnished with a transcript of the judge's comments in the other cases.

(continued)

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7

A-0825-06T5

RECORD IMPOUNDED

August 15, 2007