The opinion
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NOT FOR PUBLICATION WITHOUT THE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-3366-20
J.D.,
Plaintiff-Respondent,
v.
R.J.C.,
Defendant-Appellant.
Submitted June 9, 2022 – Decided June 23, 2022
Before Judges Haas and Alvarez.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Cape May County,
Docket No. FV-05-0387-18.
Julia C. Delia, attorney for appellant.
Coalition Against Rape & Abuse Law Project,
attorneys for respondent (Jane Molt, on the brief).
PER CURIAM
After a hearing on defendant R.J.C.'s motion to vacate a domestic violence
final restraining order (FRO) due to lack of proper service, a Family Part judge
denied the application as meritless and untimely. See Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. For the reasons stated by
Judge Christine Smith, we affirm. We add some brief comments.
During the hearing, the complainant J.D. testified that a temporary
restraining order (TRO) was issued against defendant on May 4, 2018. The TRO
states that a Lower Township Police Officer could not initially serve defendant.
Not included in the record is a return of service in which a different officer,
James Mathis, states he served defendant "telephonically" at 3:07 p.m. on May
6, 2018. Defendant resided in Delaware and claims he was homeless and
without a phone at the time.
Plaintiff received a text message from defendant on May 9, 2018, at 6:00
p.m. in which he says, among other things, "violate me, I have 250 to bail out
and pay for the first violation." She also showed the judge a May 19, 2018 text
message from defendant in which he says, among other things, "you and your
man can have an FRO." The parties have previously obtained restraints but
dissolved them. Although defendant does not dispute sending the messages, he
flatly denies having had notice of the TRO or the FRO hearing date. 1
1
At the FRO hearing at which defendant failed to appear, he was also found
guilty of contempt of the TRO for harassing text messages. At that juncture, as
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Defendant testified he first learned of the restraining order nearly a year
later when he attempted to file papers at the courthouse regarding visitation with
the parties' son. The FRO required defendant to complete a risk assessment
before visiting with his child. A visitation hearing was scheduled, but only
plaintiff appeared.
In November 2020, some two and one-half years after entry of the FRO,
defendant filed a Carfagno motion, and raised the issue of improper service
during a scheduling conference. See Carfagno v. Carfagno, 288 N.J. Super. 424
(Ch. Div. 1985). Defendant appeals the order issued from a June 15, 2021
hearing.
In rendering her detailed and thorough findings, the judge found plaintiff
credible and defendant incredible. The judge found plaintiff "very believable,"
and noted defendant must have known about the order at least one year later
when he sought visitation. He failed to appear at the hearing. Two years after
entry of the order, he reappeared and alleged faulty service.
The judge acknowledged defendant may not have gotten mail for months
because he had no fixed address, but did not find the balance of his testimony
reflected in the transcript, it was known that defendant was homeless, that his
parents had a restraining order against him, and that he had contacted plaintiff
asking for gasoline money.
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credible. She concluded he knew about the restraining order but chose not to
act until he decided to contact his child. The judge described defendant's
testimony as "somewhat not reasonable."
While the judge was giving her decision, defendant became disruptive.
The judge had to interrupt the Zoom proceedings so defendant and his attorney
could confer in a "breakout room." She noted that although defendant claimed
he had no phone in the months of April, May, and June of 2018, he did not
dispute that he texted plaintiff and left her voicemails played at the hearing.
Thus, the judge concluded that defendant had actual notice of the TRO and the
hearing date.
The judge also took into account defendant's failure to appear at the
visitation hearing he requested. It was nearly two years before he obtained
counsel to seek dismissal of the restraining order. Defendant should have
challenged the FRO when he filed to obtain visitation. Instead, he elected to do
nothing and waited over a year. Thus, the judge denied defendant's application
because it was untimely and he had actual notice of the FRO hearing.
Now on appeal, defendant claims the court committed the following
errors:
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POINT I
THE TRIAL COURT ERRED IN FINDING SERVICE
OF THE [TRO] WAS PROPER BECAUSE THE
PLAINTIFF DID NOT DEMONSTRATE THAT LAW
ENFORCEMENT ATTEMPTED TO EFFECTUATE
SERVICE NOR DID SHE DEMONSTRATE A DUE
DILIGENT ATTEMPT TO EFFECTUATE SERVICE.
POINT II
EVEN IF THE APPROPRIATE LAW
ENFORCEMENT AGENCY DID EFFECTUATE
SERVICE, THE COURT ABUSED ITS
DISCRETION. (ISSUE NOT RAISED).
It has long been the law that the factual findings of the Family Part are
entitled to particular deference in view of its "special expertise in the field of
domestic relations." Cesare v. Cesare, 154 N.J. 394, 412-13 (1998). Credibility
is crucial, and the trial court's conclusions on that score are to be accepted on
appeal unless clearly lacking in reasonable support. N.J. Div. of Youth & Fam.
Servs. v. F.M., 375 N.J. Super. 235, 259 (App. Div. 2005) (citing In re
Guardianship of D.M.H., 161 N.J. 365, 382 (1999)).
According to the PDVA:
An order granting emergency relief, together
with the complaint or complaints, shall immediately be
forwarded to the appropriate law enforcement agency
for service on the defendant . . . . If personal service
cannot be effected upon the defendant, the court may
order other appropriate substituted service. At no time
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shall the plaintiff be asked or required to serve any
order on the defendant.
[N.J.S.A. 2C:25-28(l).]
"[T]he court may relieve a party or the party’s legal representative from a
final judgment or order for . . . mistake, inadvertence, surprise, or excusable
neglect . . . or . . . any other reason justifying relief from the operation of the
judgment or order." R. 4:50-1(a), (f). "The motion shall be made within a
reasonable time, and [if for mistake, inadvertence, surprise, or excusable
neglect,] not more than one year after the judgment, order or proceeding was
entered or taken." R. 4:50-2. "Not every defect in service of process constitutes
a denial of due process qualifying defendant for relief from the [] judgment."
T.M.S. v. W.C.P., 450 N.J. Super. 499, 507 (App. Div. 2017) (quoting Pressler
& Verniero, Current N.J. Court Rules, cmt. 5.4.2 on R. 4:50-1(d) (2017)).
In A.M.C. v. P.B., the trial judge denied an FRO application, noting the
defendant was never served with a copy of the TRO. 447 N.J. Super. 402, 411
(App. Div. 2016). Because the defendant "was completely unaware" of the
TRO, the judge inferred the parties did not have "any continuing association"
and therefore an FRO was unnecessary. Ibid. Notably, the defendant was
himself a police officer. Id. at 421.
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We reversed, noting it should have been relatively easy for police to serve
a TRO on a fellow officer. Ibid. While acknowledging the need to ensure
domestic violence defendants receive due process, it was "greatly concern[ing]
. . . that plaintiff was denied [the] protection [of an FRO] because the Judiciary
failed to perform a material clerical task that the Legislature expressly entrusted
it to perform." Id. at 422. Therefore "as a matter of public policy, the trial court
should not have considered the Judiciary's unexplained failure to carry out its
statutory responsibilities . . . as a factor in favor of denying plaintiff the
protections she was entitled to receive under the PDVA." Ibid. A similar logic
applies here.
Furthermore, defendant offers no reason for us to ignore the judge's amply
supported findings. He fails to explain his clear references to a TRO in his
communications with plaintiff before the final hearing. Nor does he explain his
years-long delay in challenging the order or his failure to do so in the visitation
proceedings he initiated, then abandoned.
Defendant is unquestionably entitled to due process regardless of the
nature of the complaint. But he has failed to establish that he did not have actual
notice of the TRO and of the FRO hearing date. His failure to appear for the
FRO hearing alone does not prove a failure of service—he certainly knew the
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date of the visitation hearing he requested but abandoned. The time to vacate
the order has long since passed. In this case, telephonic service sufficed. The
judge did not abuse her discretion in concluding defendant had actual notice, or
in refusing to vacate the FRO.
Affirmed.
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