Final Restraining Order Cannot be Used as Bargaining Chip in Divorce Settlement

J.S. V. D.S.
No. A-5742-14T2

Dec. 5, 2016 (Date Decided)

Judge Fisher

for appellant: Adinolfi and Lieberman, P.A., (Ronald G. Lieberman, of counsel and on the brief).

for respondent: Marc J. Nehmad.

Plaintiff filed and obtained a final restraining order against defendant, her husband, pursuant to the Prevention of Domestic Violence Act.

Defendant appealed, arguing that the FRO was void upon entry because the judge did not find the occurrence of an act of domestic violence or determine that plaintiff required protection from defendant.

At the final hearing, counsel advised the trial judge that the parties had reached an agreement, which called for defendant's consent to a final restraining order in exchange for plaintiff's consent to defendant's exclusive possession of the marital home pending further order. The judge neither asked plaintiff to describe the alleged act of domestic violence nor asked defendant to acknowledge he committed an act of domestic violence. Satisfied the agreement was voluntarily reached, the judge entered the FRO in question.

As observed in A.M.C. v. P.B., the judiciary possesses an independent duty to remediate any systematic failures in the implementation of the act. If plaintiffs seek dismissal of an FRO, the act obligates a trial court to examine the plaintiff's reasons. The court conducts an inquiry in order to ascertain whether the plaintiff knowingly and freely sought dismissal. Courts must ensure dismissal is not part of an impermissible swap of promises.

Public policy precludes the entry, continuation, or dismissal of an FRO as a bargaining chip in the settlement of other disputes. The act imposes considerable obligations on law enforcement and an FRO is not merely an injunction entered in favor of one private litigant against the other. A violation of an FRO may trigger law enforcement involvement and lead to criminal prosecution. The Judiciary is required by the act to establish and maintain a central registry of persons who have had domestic violence restraining orders entered against them. In light of the strong public policies underlying the act, the panel exercised its discretion to consider the appeal on its merits notwithstanding the parties agreement to dismiss it.

The panel was obligated to ensure the FRO was legitimately entered and should not permit its wrongful perpetuation simply because it may have become a useful chip in the settlement of the parties' matrimonial disputes.

Because the trial judge mistakenly failed to elicit a factual foundation, failed to find domestic violence occurred, and failed to determine whether plaintiff required protection as a result of defendant's conduct, the panel vacated the FRO, reinstated the TRO and remanded for a final hearing.