RECORD IMPOUNDED

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 

NOT FOR PUBLICATION WITHOUT THE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.
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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.