P.R.C. v. D.G.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

P.R.C.,

Plaintiff-Respondent,

v.

D.G.,

Defendant-Appellant.

__________________________________________

March 13, 2014

 

Submitted January 27, 2014 - Decided

 

Before Judges Parrillo and Guadagno.

 

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-2211-12.

 

The Gorman Law Firm, attorneys for appellant (Scott A. Gorman, of counsel and on the brief).

 

Respondent has not filed a brief.

PER CURIAM

Defendant D.G. appeals from a final restraining order (FRO) entered on June 1, 2012, pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. She also appeals from the order denying her motion for reconsideration entered July 30, 2012. For the reasons that follow, we vacate the FRO, reinstate the temporary restraining order (TRO), and remand for trial.

I.

In May 2012, plaintiff and defendant met in a bar and began a brief romantic relationship. Within days after they met, it became clear to plaintiff that defendant wanted a more committed relationship; plaintiff did not. When plaintiff suggested that defendant "slow down," he claims she threatened him.

On May 24, 2012, plaintiff obtained a TRO based on the predicate acts of harassment, N.J.S.A. 2C:33-4, and terroristic threats, N.J.S.A. 2C:12-3. Plaintiff's complaint alleged that defendant

did commit the act of harassment, and terroristic threats by attempting to contact the victim numerous times by cell phone and respond to his place of employment, and stating to him that she was going to purposely have him arrested and assaulted by one of her biker boyfriends, by breaking his neck.

 

The TRO ordered both parties to appear for the FRO hearing on June 1, 2012.

Plaintiff also filed a criminal complaint against defendant on May 24, 2012, with the Paterson Police Department. As a result, defendant was arrested and held in a Paterson jail overnight.

On May 25, 2012, defendant appeared via teleconference for a bail hearing relating to the criminal charges. She was later released and claims she was advised that the next time she was required to appear in court was on June 14, 2012, for an early screening conference. Defendant claims that she believed that the FRO and the criminal matters would both be handled on June 14, 2012.

On June 1, 2012, a hearing was held on plaintiff's application for an FRO. Defendant did not appear and the judge noted her absence, stating she had "been served as of [May 25, 2012]." Plaintiff testified that after going on "about three dates" with defendant, he told her to "either slow down or we can't talk[.]" After that conversation, plaintiff said defendant threatened to call his probation officer and make up stories to have him arrested.1 He also testified that defendant parked outside of his house at around 3:00 a.m., drove by his place of employment fourteen times in a five hour period, called him fifty-two times during a one-hour period, and sent him "hundreds" of text messages during a twenty-four-hour period. He also claimed that defendant threatened to have her friends from a motorcycle club come to his house and break his neck.

After plaintiff's testimony which comprises fewer than three pages of transcript, the judge made the following perfunctory findings:

[defendant] was harassing [plaintiff], and threatening him [and the court] find[s] that the plaintiff has proven by the preponderance of the evidence that that's what occurred. She was harassing him. She was upset over him wanting to break off or change their relationship, and not only did she harass him, but she threatened him. She did commit the predicate act of terroristic threats.

 

[The court is] going to make this a final order because of the nature of the threats, and the nature of the case having to do with her also threatening to have other people harm . . . the plaintiff.

The judge issued an FRO and provided plaintiff with a copy. The order does not indicate how or when defendant was served, but she acknowledges receiving a copy of the FRO in the mail. Shortly after learning of the issuance of the FRO, defendant retained counsel and filed a timely motion for reconsideration. On July 30, 2012, the trial court denied defendant's motion.

II.

We first address defendant's claim that the trial court erred when it denied her motion for reconsideration. We review a trial court's decision to grant or deny a motion for reconsideration under an "abuse of discretion" standard. Fusco v. Bd. of Educ., 349 N.J. Super. 455, 462 (App. Div.), certif. denied, 174 N.J. 544 (2002). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

"Motions for reconsideration are granted only under very narrow circumstances[.]" Fusco, supra, 349 N.J. Super. at 462. The motion is reserved for cases where "either (1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

Defendant claims she failed to appear for the FRO hearing because of her confusion concerning her upcoming court date for the criminal charges at the time the order was issued. In assessing defendant's claim that she was confused as to the return date for the FRO hearing, we examine the timing of the alleged predicate acts, the issuance of the FRO, and the indication of service. Plaintiff's complaint alleges that defendant committed the predicate acts on May 24, 2012, at 9:17 p.m. Plaintiff went to the Paterson police station later that evening to seek a TRO and file a criminal complaint against defendant. The TRO indicates that the municipal judge issued the order telephonically at 11:10 p.m. that evening. The TRO also indicates that defendant was served five minutes later, at 11:15 p.m., by Paterson Police Officer Santiago.

If defendant was actually served at that time, it is likely that she was already under arrest and in custody at the Paterson Police Department. Although defendant does not deny receiving a copy of the TRO, she claims that she was confused when court personnel told her, upon her release from jail on May 25, 2012, that she was not required to return to court until June 14, 2012.

Defendant claims she first learned of the FRO when she received a copy in the mail. She provides a copy of an envelope from the Passaic County Superior Court, Family Division date-stamped June 6, 2012, which contained the FRO. She maintains that, had she been aware that the FRO hearing was scheduled for June 1, she would have appeared and opposed it.

Rule 4:50-1 provides, in pertinent part, that "the court may relieve a party . . . from a final judgment or order for

. . . (a) mistake, inadvertence, surprise, or excusable neglect; . . . or (f) any other reason justifying relief from the operation of the judgment or order." This rule was "'designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case.'" Mancini v. EDS, 132 N.J. 330, 334 (1993) (quoting Baumann v. Marinaro, 95 N.J. 380, 392 (1984)).

In Mancini, the Court reviewed a default judgment issued against an insurance provider. Id. at 332. The corporate-defendant argued that its failure to respond to complaints, notices, and claims was excusable because it was served with the litigation documents during a time of "administrative confusion." Id. at 335. The Court found the defendant s neglect to be inexcusable because its mistake was not "compatible with due diligence or reasonable prudence." Ibid. (citing Baumann, supra, 95 N.J. at 394). However, the Court found that the circumstances were sufficiently exceptional to warrant relief from the default judgment for several reasons. Id. at 336. First, it found that although the defendant's neglect was inexcusable, it was neither willful nor calculated. Ibid. In addition, it found that the defendant paid the plaintiffs' counsel fees and that it deposited the policy limit with the Law Division. Ibid. Further, the Court noted that its primary ground for granting the defendant relief under the rule was based on a defect in procedure during the arbitration proceeding. Ibid.

When the trial court denied defendant's motion for reconsideration on July 30, 2012, nothing was placed on the record and no findings of fact or conclusions of law were provided. Rule 1:7-4 provides in pertinent part:

[t]he court shall, by an opinion or memorandum decision, either written or oral, find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right, and also as required by R. 3:29.

 

While we owe deference to the findings of the Family Part, no deference can be rendered if there are no findings to defer to. See McCann v. Biss, 65 N.J. 301, 304 n. 2 (1974) ("Judges should always state their reasons so that counsel and an appellate tribunal may be fully informed."); Kenwood Assocs. v. Bd. of Adj. of Englewood, 141 N.J. Super. 1, 4 (App. Div. 1976) (a trial court has a duty to set forth fully its findings and reasons, factual and legal, for reaching its decision and that perfunctory treatment is a disservice to the litigants, the attorneys, and the appellate court).

It was error for the court to deny defendant's motion for reconsideration without at least considering her reasons for failing to appear. If she was truly confused about the direction given to her by court personnel to return to court on June 14, 2012, and did not understand that the criminal and domestic violence matters were separate proceedings, the default should have been vacated.

Applying the Mancini criteria, we first note that motions to vacate default judgments are treated indulgently. Mancini, supra, 132 N.J. at 336. Also, we see no evidence that defendant's actions in failing to appear for the FRO hearing were either willful or calculated. Defendant acted promptly when she received the FRO in the mail by retaining counsel and promptly moving for reconsideration. Moreover, in Mancini, the corporate-defendant was only challenging a default judgment issued against it regarding an insurance dispute. Id. at 332. Here, defendant is seeking to avoid the far more severe consequences that attend the issuance of a domestic violence restraining order, including registration in a central registry, N.J.S.A. 2C:25-34, a registration that is not subject to expungement. See Shah v. Shah, 184 N.J. 125, 140 (2005) (citing In re M.D.Z., 286 N.J. Super. 82, 87 (App. Div. 1995)).

As we are remanding this matter, we are constrained to note the absence of adequate findings by the trial court in its truncated conclusions. First, there was no finding that plaintiff required a restraining order. We stated in Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006), that issuance of an FRO does not inexorably follow from a finding of a predicate act. The court must engage in a separate inquiry regarding the need for restraints. Ibid. We also note that there is apparently no history of domestic violence between the parties, which the trial court failed to consider. See Kamen v. Egan, 322 N.J. Super. 222, 228 (App. Div. 1999) ("[The PDVA] mandates that the court, in determining whether an act of domestic violence has occurred, consider the previous history of domestic violence[.]"). Finally, the trial court failed to make findings that the text messages, phone calls and other acts complained of by plaintiff, including defendant driving by plaintiff's house and work, were done with intent to harass. See J.D. v. M.D.F., 207 N.J. 458, 485 (2011) ("Merely being outside of the home in the early morning hours is not an act of harassment."); see also L.M.F. v. J.A.F., 421 N.J. Super. 523, 535 (App. Div. 2011) ("[T]exting was not harassment within the meaning of N.J.S.A. 2C:33-4 because the trial court did not find, and the evidence does not show, that defendant sent these text messages for the purpose of harassing plaintiff.").

We vacate the FRO, reinstate the TRO, and remand for a new trial. We do not retain jurisdiction.

1 It is not clear from the record why plaintiff was on probation.