The Appellate Division Rejects a Stipulated Dismissal of an Appeal From a Final Domestic Violence Restraining Order

J.S. v. D.S., 448 N.J. Super. 17 (App. Div. 2016).  Normally, when parties agree to dismiss an appeal, the courts are only to happy to oblige.  This opinion by Judge Fisher yesterday in a domestic violence final restraining order case is a rare exception to that general rule.

Plaintiff filed a complaint against her husband under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (“the Act”).  She obtained a temporary restraining order against defendant.  At the final hearing, the parties represented that they had reached an agreement for the entry of a final restraining order (“FRO”), on certain terms regarding possession of the marital home, an issue in pending matrimonial proceedings between the parties.  The Family Part judge granted the FRO.  The judge did not, however, ask plaintiff to describe the alleged act of domestic violence or ask defendant to admit it.  The judge made no finding that domestic violence occurred or that plaintiff required protection from defendant.

Defendant appealed to the Appellate Division, arguing that the FRO was void ab initio due to the Family Part judge’s failure to take testimony or make findings about the alleged domestic violence.  Shortly before the oral argument date, the parties submitted a stipulation dismissing the appeal.  The Appellate Division expressed concern about leaving the FRO in place when it might have been void from the start.  The court notified the parties that if they did not file a formal motion to dismiss the appeal, the panel might rule on the merits.  No motion was filed.

Writing for the panel, Judge Fisher noted that although settlements are favored by public policy, courts have “an independent duty” to remediate systemic failures in the implementation of the Act.  Thus, in domestic violence cases where dismissal is sought at the trial level, either before or after issuance of an FRO, the Act requires a “searching inquiry” into the reasons for the proposed dismissal, in part to ensure that there is no “impermissible swap of promises.”  An FRO cannot be used “as a bargaining chip in the settlement of other disputes.”

Moreover, because an FRO “imposes considerable on law enforcement” in the event of a violation, an FRO is not merely a private matter that the parties can dispense with at their pleasure.  “The potential in such matter for the future involvement of the courts, law enforcement, and prosecutors, counsels against blithely acceding to the perpetuation of a groundless FRO.”

For those reasons, the panel ignored the parties’ stipulation of dismissal of the appeal.  Judge Fisher noted that Rule 2:8-2 does not obligate a court to dismiss an appeal on request of the parties, but states only that the court “may” do so.  It was not appropriate to do that here.

On the merits, Judge Fisher reversed the entry of the FRO for failure to make the necessary findings.  He vacated the FRO, reinstated the temporary restraints, and remanded the matter for a final hearing.

As Judge Fisher noted, this ruling does not mean that every domestic violence case must proceed through trial, or that a defendant cannot “accede to relief sought by a plaintiff.”  But there must be “an adequate factual foundation” for an FRO, and the Family Part must be satisfied that the defendant “understands the consequences of the decision not to contest the matter.”  That did not occur here.