J.R. v. B.A.

RECORD IMPOUNDED

                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1059-15T2


J.R.,

        Plaintiff-Respondent,

v.

B.A.,

        Defendant-Appellant.

__________________________________

              Submitted August 8, 2017 – Decided December 11, 2017

              Before Judges O'Connor and Whipple.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Camden
              County, Docket No. FV-04-1476-12.

              B.A., appellant pro se.

              Obermayer Rebmann Maxwell & Hippel, LLP,
              attorneys for respondent (Shari B. Veisblatt
              and Thomas A. Roberto, on the brief).

PER CURIAM

         Defendant B.A. appeals from a November 5, 2015 Family Part

order denying his motion to schedule a final hearing to

adjudicate the domestic violence complaint plaintiff J.R. filed
against him in 2011.    We vacate this order and remand for

further proceedings.

                                  I

    We recount only those portions of the record pertinent to

the issues on appeal.     Plaintiff and defendant had a four-month

dating relationship, which ended in March 2011.    Later that

year, each party filed a domestic violence complaint pursuant to

the Prevention of Domestic Violence Act (the Act), 
N.J.S.A.

2C:25-17 to -35, and each obtained a temporary restraining order

(TRO) against the other.

    After nine days of trial, on August 2, 2011, the parties

agreed plaintiff's TRO against defendant would continue

indefinitely, and defendant would dismiss the complaint and TRO

he obtained against plaintiff.    It is not disputed plaintiff's

TRO against defendant, which is expressly identified as an

“indefinite TRO” in the order itself, is also a consent order.

For the balance of the opinion, we refer to such order as the

consent order, indefinite TRO, or order.

    At the time of the entry of this order, both parties were

represented by counsel.    Before signing the order, the court

questioned both parties and determined they had entered into the

order voluntarily.   However, the court failed to elicit any



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acknowledgment from defendant he committed an act of domestic

violence.

    In October 2011, defendant filed a motion to set aside the

order on the ground he agreed to its entry under duress and the

terms were vague, ambiguous, or unenforceable.   On December 6,

2012, the court rejected defendant's contentions and denied his

motion.   On February 26, 2013, subsequent motions for

reconsideration of or to vacate the December 6, 2012 order were

denied.   Defendant appealed the December 6, 2012 order, but his

appeal was ultimately dismissed and his motion to reinstate the

appeal was unsuccessful.

    In 2015, defendant filed a and order to show cause why a

final hearing should not be scheduled on the indefinite TRO.

Later converted to a motion, defendant asserted a number of

contentions, one of which was the court erred by failing to

complete the final hearing on plaintiff's domestic violence

complaint and by allowing the entry of an indefinite TRO.

    On November 5, 2015, the court denied the motion.    In its

decision, the court claimed defendant had made the same argument

when he previously sought to set aside the order and that such

argument already had been rejected.   The court also emphasized

it was the parties' decision to suspend the final hearing on

their respective complaints and enter into the order which,

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among other things, permitted plaintiff's TRO against defendant

to continue indefinitely.   The court further observed defendant

was in favor of this resolution at the time the parties crafted

their agreement, because such resolution avoided the possibility

of a final restraining order being entered against him.

     Finally, the court stated an "indefinite TRO" is regarded

as one that has not been served upon a defendant named in a

domestic violence complaint.   Although it did not specifically

refer to this authority, we assume the court was making

reference to subsection 4.9.9 of the New Jersey Domestic

Violence Procedures Manual (Manual), which is promulgated by the

Supreme Court in conjunction with the Office of the Attorney

General, Department of Law and Public Safety.   This subsection

states that when it is unlikely the defendant will be served

within a reasonable period of time, the court can issue an

indefinite TRO that continues the relief requested by the

plaintiff and that a final hearing will be scheduled when the

defendant is served.1

     According to the court, the police will not arrest a

defendant if he or she violates an indefinite TRO, because the


1
   The manual may be found online at
https://www.judiciary.state.nj.us/courts/assets/family/dvprcman.
pdf.


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police will assume the defendant has not been served with the

TRO.   The court commented defendant was aware this was one of

the benefits of having an indefinite TRO, because he could:

           avoid the possibility of plaintiff calling
           the police and having [defendant] arrested
           any time [he] allegedly violated the
           temporary restraining order. In other
           words, police officers will not arrest a
           defendant on an indefinite temporary
           restraining order because they assume that
           the defendant has not been noticed.

                                 II

       On appeal, defendant asserts various contentions for our

consideration.    None, but for one, has sufficient merit to

warrant discussion in a written opinion, see Rule 2:11-

3(e)(1)(E).    The sole contention worthy of discussion is

defendant's claim the court erred when it denied his request to

complete the final hearing on plaintiff's complaint and

permitted the entry of the indefinite TRO.      We note defendant

had not in fact asserted this argument when he sought to set

aside this order in 2012.

       There is no provision in the Act that provides for the

issuance of an "indefinite TRO."      The Manual, which is "intended

to provide procedural and operational guidance for . . . judges

and Judicial staff and law enforcement personnel[,]" N.J.

Domestic Violence Procedures Manual § i (amended 2008), does


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permit the entry of an "indefinite TRO," but only under the

circumstances set forth in subsection 4.9.9, addressed above.

See N.J. Domestic Violence Procedures Manual, § 4.9.9 (amended

2008).   However, this subsection does not apply here, as

defendant was served with plaintiff's complaint.

     According to the Act, once served with a domestic violence

complaint2, no order restraining the defendant may be entered

absent a court's finding or the defendant's admission he or she

committed an act of domestic violence.   
N.J.S.A. 2C:25-29(a).

"A domestic violence final restraining order may not be entered

by consent or without a factual foundation."     J.S. v. D.S., 
448 N.J. Super. 17, 23 (App. Div. 2016) (citing Franklin v. Sloskey,


385 N.J. Super. 534, 540-41 (App. Div. 2006)).

     The Manual similarly provides that "[t]he court only has

jurisdiction to enter restraints against a defendant after a

finding by the court or an admission by the defendant that the

defendant has committed an act(s) of domestic violence[.] . . .

The defendant must provide a factual basis for the admission


2
   The form of domestic violence complaint used by the court
includes a form of temporary restraining order. "A Domestic
Violence Civil Complaint means the multi-page application and
temporary restraining order issued by the Superior or Municipal
Court."   See Domestic Violence Procedures Manual (October 9,
2008), I-1, 1.6; III-9, 3.11. Thus, if a defendant has been
served with a domestic violence complaint, he or she has also
been served with a temporary restraining order.

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that an act of domestic violence has occurred."       N.J. Domestic

Violence Procedures Manual § 4.13.2 (amended 2008).

    We are mindful the prohibition against the entry of a

restraining order after a complaint and TRO have been served

upon a defendant pertains to the entry of a final restraining

order and that the order under review here was labeled by the

parties as an "indefinite TRO."       However, an order is not

temporary merely because it is labeled as such.       There is no

question the "indefinite TRO" entered in this matter was

intended to be and is a final order.      It disposed of and

terminated the matter.

    We also acknowledge New Jersey's strong public policy

favoring the settlement of litigation.       Gere v. Louis, 
209 N.J.
 486, 500 (2012).   "The settlement of litigation ranks high in

our public policy."   Brundage v. Estate of Carambio, 
195 N.J.
 575, 601 (2008) (quoting Jannarone v. W.T. Co., 
65 N.J. Super.
 472, 476 (App. Div.), certif. denied, 
35 N.J. 61 (1961)).         "This

policy rests on the recognition that parties to a dispute are in

the best position to determine how to resolve a contested matter

in a way which is least disadvantageous to everyone."       Gere,

supra, 
209 N.J. at 500 (2012) (citations omitted).

    In addition, "[a]dvancing that public policy [of fostering

the settlement of disputed claims] is imperative in the family

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courts where matrimonial proceedings have increasingly

overwhelmed the docket. . . .    This practice preserves the right

of competent, informed citizens to resolve their own disputes in

whatever way may suit them."    Ibid. (quoting Puder v. Buechel,


183 N.J. 428, 438 (2005).    We also appreciate that, here, the

court was endeavoring to facilitate a disposition both parties

favored and which terminated this highly contentious matter.

       Nevertheless, the Act limits the manner in which domestic

violence matters may be resolved.    Under these particular

circumstances, the court was not at liberty to enter what was in

effect a final order, absent a finding or an admission defendant

committed an act of domestic violence.    Here, neither condition

was fulfilled.

       Notwithstanding, under these particular facts, another

question must be resolved before the subject order can be found

void.    Although not framed as such, in effect the relief

defendant sought before the Family Part was that afforded by

Rule 4:50-1(d).    Thus, even though he did not specifically cite

this rule, we are compelled to consider if it is availing to

him.    See Midland Funding LLC v. Albern, 
433 N.J. Super. 494,

498, n.3 (App. Div. 2013) (citing Baumann v. Marinaro, 
95 N.J.
 380, 390 (1984)(noting regardless of the legal authority upon



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which a party expressly posits a motion, the court is required

to apply the law actually implicated by such motion)).

    Rule 4:50-1(d) does provide that the court may relieve a

party from a final judgment or order if it is void.   However,

"[t]he mere fact [an order] is void within the intendment of

subsection (d) has been held not to automatically entitle the

defendant to relief pursuant to the rule."    See Pressler &

Verniero, Current N.J. Court Rules, cmt. 5.4.1 on R. 4:50-1

(2018) (citing Garza v. Paone, 
44 N.J. Super. 553 (App. Div.

1957)).   Rule 4:50-2 requires motions seeking relief under Rule

4:50-1(d) be made within a reasonable time.   Whether a party has

moved timely rests in the court's sound discretion, as guided by

equity.   Garza, supra, 
44 N.J. Super. at 558.

    Accordingly, we remand this matter to the Family Part court

to consider, after permitting the parties the opportunity to

brief the issue, whether defendant timely moved under Rule 4:50-

1(d) for relief from the subject order.

    The November 5, 2015 order is vacated and this matter is

remanded for further proceedings consistent with this opinion.

We do not retain jurisdiction.




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