RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5742-14T2

J.S.,

Plaintiff-Respondent,

v.

D.S.,

Defendant-Appellant.

_______________________________________

Submitted September 20, 2016 – Decided

Before Judges Fisher, Ostrer and Leone.

On appeal from the Superior Court of New 

Jersey, Chancery Division, Family Part, 

Atlantic County, Docket No. FV-01-1361-15.

Adinolfi and Lieberman, P.A., attorneys for 

appellant (Ronald G. Lieberman, of counsel 

and on the brief).

Marc J. Nehmad, attorney for respondent.

The opinion of the court was delivered by

FISHER, P.J.A.D.

In this appeal, defendant argues a domestic violence final 

restraining order (FRO) was void upon entry because the judge 

did not find the occurrence of an act of domestic violence. A 

few days before the scheduled date for oral argument, the 

parties advised us that they had agreed to dismiss this appeal 

APPROVED FOR PUBLICATION

December 5, 2016

APPELLATE DIVISION

December 5, 2016
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and allow for the perpetuation of the FRO. Notwithstanding their 

agreement, the interests of justice require a disposition of the 

appeal's merits.

The underlying circumstances may be briefly summarized. 

Plaintiff filed a complaint, pursuant to the Prevention of 

Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, and 

obtained a temporary restraining order against defendant, her 

husband. At the final hearing, counsel advised the trial judge 

that the parties had reached an agreement, which called for 

defendant's consent to an FRO in exchange for plaintiff's 

consent to defendant's exclusive possession of the marital home 

pending further order in the matrimonial proceedings. The 

parties were then sworn, and the judge briefly asked whether 

they understood and voluntarily consented to the agreement. 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.

Defendant filed a timely appeal, arguing, among other 

things, that the judge mistakenly issued the FRO without taking 

testimony about the allegations, without finding an act of 

domestic violence occurred, and without determining plaintiff 

required protection from defendant. See, e.g., State v. D.G.M., 

439 N.J. Super. 630, 635 (App. Div. 2015).
3 A-5742-14T2

Prior to the scheduled date for oral argument in this 

court, the parties submitted a stipulation of dismissal. In 

light of the issues posed by this appeal, we requested greater 

detail about their settlement and were advised by counsel that 

the parties had resolved their matrimonial disputes and 

defendant had consented to a dismissal of the appeal to allow 

the FRO to "remain in full effect." In response, we alerted the 

parties to our concern about leaving an FRO in effect without 

considering the argument it was void ab initio. The parties 

were invited to file a motion arguing that we should dismiss the 

appeal without deciding the appeal's merits. The parties were 

also told that if a motion was not filed by October 28, 2016, we 

would consider ruling on the appeal's merits. No motion was 

filed.

We do not lightly disregard private parties' desire to 

cease litigating their disputes. Our courts often say that 

"[s]ettlement of litigation ranks high in our public policy." 

Nolan v. Lee Ho, 120 N.J. 465, 472 (1990) (quoting Jannarone v. 

W.T. Co., 65 N.J. Super. 472, 476 (App. Div.), certif. denied, 

35 N.J. 61 (1961)). But, as we recently observed in A.M.C. v. 

P.B., __ N.J. Super. __, __ (App. Div. 2016) (slip op. at 30), 

the judiciary possesses "an independent duty" to remediate any 

"systematic failures" in the implementation of the Act. In 
4 A-5742-14T2

short, in domestic violence matters, judges are more than mere 

referees. Cf. State v. Garron, 177 N.J. 147, 180 (2003).

For example, it is not uncommon for domestic violence 

plaintiffs to seek dismissal of their actions either before or 

after entry of an FRO. In those instances, the Act obligates a 

trial court to examine the plaintiff's reasons for seeking 

dismissal by conducting a searching inquiry into the plaintiff's 

understanding of the consequences for the purpose of 

ascertaining whether, among many other things,1 the plaintiff has 

knowingly and freely sought dismissal. See Kanaszka v. Kunen, 

313 N.J. Super. 600, 605 (App. Div. 1998). As part of this 

inquiry, courts must ensure dismissal is not part of an 

impermissible swap of promises. See Domestic Violence Manual, 

supra, § 4.19.7 (prohibiting "conditional dismissals" – i.e., a 

dismissal conditioned upon "either party performing any specific 

act or upon the occurrence of any particular event" – regardless 

of the agreement of the parties).2 Public policy precludes the 

 

1 The New Jersey Domestic Violence Procedures Manual, adopted by 

our Supreme Court and the Attorney General in 1991, provides an 

extensive discussion about the inquiry that should be made by 

the court and its personnel in considering a plaintiff's request 

for a dismissal of the action. See N.J. Domestic Violence 

Procedures Manual, § 4.19 (amended 2008).

2 We do not have before us the propriety of a dismissal of a 

domestic violence complaint when conditioned upon entry of civil 

restraints in a matrimonial action. See Domestic Violence 

Manual, supra, § 4.19.2.
5 A-5742-14T2

entry, continuation, or dismissal of an FRO as a bargaining chip 

in the settlement of other disputes. Consequently, our 

appellate courts must also be wary of settlements in such 

matters.

We are also mindful that the Act imposes considerable 

obligations on law enforcement and that an FRO is not merely an 

injunction entered in favor of one private litigant against the 

other. See State v. Brito, 345 N.J. Super. 228, 231 (App. Div. 

2001) (recognizing that, in a prosecution for contempt of an 

FRO, "the State is the party in interest, not the complainant").

A violation of an FRO has a tendency to trigger law enforcement 

involvement and may ultimately lead to criminal prosecution. And 

the entry of an FRO imposes continuing obligations upon the 

Judiciary, which is required by the Act to "establish and 

maintain a central registry of all persons who have had domestic 

violence restraining orders entered against them." N.J.S.A.

2C:25-34. 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 these reasons, we are compelled in this unusual 

circumstance to ignore the parties' stipulation of dismissal and 

settlement agreement. In considering the appeal on its merits, 

we are not exercising a roving jurisdiction to right wrongs the 
6 A-5742-14T2

parties have no interest in vindicating. And, in so proceeding, 

we do not extend our reach beyond what is reasonably before us. 

We have subject matter jurisdiction because defendant filed an 

appeal; whether we should dismiss the appeal prior to 

adjudication on the parties' joint request lies within our sound 

discretion. Rule 2:8-2 declares that, "upon the filing of a 

stipulation by the parties agreeing thereto," the court "may" –

not must – dismiss the appeal. Accordingly, we are not required 

to dismiss the appeal. See, e.g., Leeds v. Harrison, 9 N.J. 202, 

213 (1952) (recognizing "'[m]ay' is a permissive and not an 

imperative verb"). In light of the strong public policies 

underlying the Act, we choose to exercise our discretion to 

consider the appeal on its merits. We have an obligation 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.

Having rejected the parties' request that we dismiss the 

appeal and having resolved to consider the merits of this 

appeal, we agree with what defendant previously argued: the FRO 

can no longer stand. A domestic violence final restraining order 

may not be entered by consent or without a factual foundation. 

See Franklin v. Sloskey, 385 N.J. Super. 534, 540-41 (App. Div. 
7 A-5742-14T2

2006).3 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, we vacate the FRO.

The FRO is vacated, the TRO is reinstated, and the matter 

remanded for a final hearing in conformity with this opinion.4 

We do not retain jurisdiction.5

 

3 We do not mean to suggest every domestic violence action must 

be tried to a conclusion or that a defendant may not accede to 

relief sought by a plaintiff. Nothing prevents a defendant from 

declining to defend against such an action or from acknowledging 

under oath the commission of an act of domestic violence. The 

consequences, however, are too serious to permit entry of an FRO 

merely by consent. Before entering an FRO, a court must ensure 

there exists an adequate factual foundation and that the 

defendant understands the consequences of the decision not to 

contest the matter. A court must also find that the FRO is 

necessary "to protect the plaintiff from an immediate danger or 

to prevent further abuse." Silver v. Silver, 387 N.J. Super.

112, 127 (App. Div. 2006).

4 We reject defendant's contention that the matter be handled by 

a different judge.

5 The continuation of the FRO was part of the parties' global 

settlement of their matrimonial disputes. We express no view 

about the effect of today's decision on their settlement 

agreement.