RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4900-15T2

T.M.S.,

Plaintiff-Respondent,

v.

W.C.P.,

Defendant-Appellant.

_______________________________

Argued April 27, 2017 – Decided

Before Judges Lihotz, O'Connor and Mawla.

On appeal from Superior Court of New Jersey, 

Chancery Division, Family Part, Atlantic

County, Docket No. FV-01-684-07.

Ronald G. Lieberman argued the cause for 

appellant (Cooper Levenson, attorneys; Mr. 

Lieberman, on the brief).

Respondent has not filed a brief.

The opinion of the court was delivered by

MAWLA, J.S.C. (temporarily assigned)

Defendant W.C.P. appeals from a December 15, 2015 sua sponte 

order reinstating a final restraining order (FRO) entered against 

him in favor of plaintiff T.M.S. pursuant to the Prevention of 

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. He also 

June 5, 2017

APPROVED FOR PUBLICATION

June 5, 2017

APPELLATE DIVISION
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appeals from the February 22, 2016 and July 1, 2016 Family Part 

orders denying his subsequent applications to vacate the 

reinstated FRO. We conclude the trial court abused its discretion 

and could not reinstate the FRO absent a motion. Because the 

December 15, 2015 order was improvidently entered, we also vacate 

the February 22, 2016 and July 1, 2016 orders.

Plaintiff obtained a temporary restraining order (TRO) 

against defendant as a result of a domestic violence incident on 

October 31, 2006. Defendant admitted to the act of domestic 

violence alleged and an FRO was entered on November 29, 2006. 

Defendant moved to vacate the FRO pursuant to N.J.S.A. 2C:25-29(d) 

and Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995). 

That motion was denied on May 13, 2008. Subsequently, defendant 

filed a second Carfagno application to dismiss the FRO. Plaintiff 

did not appear for the hearing. After determining plaintiff had 

been properly served with notice of the hearing, the court granted 

defendant's unopposed application.

With the FRO vacated, defendant moved for relief from weapons 

forfeiture. At the initial weapons forfeiture hearing, there was 

a question whether plaintiff was properly notified of the dismissal

of the FRO. On the last day of the hearing, the court, who had 

heard the initial Carfagno application, reversed its initial 

determination plaintiff was validly served with defendant's 
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dismissal application, and vacated the December 8, 2014 dismissal 

order, reinstating the FRO. As a result, the weapons forfeiture 

matter was dismissed without prejudice. 

Along with the sua sponte reinstatement of the FRO, the judge

ordered a Carfagno hearing. A different court conducted this 

hearing, and ultimately denied defendant's request to vacate the 

FRO. Defendant's motion for reconsideration was denied on July 

1, 2016. Defendant now appeals and asserts the following issues:

I. THE TRIAL COURT JUDGE CANNOT VACATE AND 

REINSTATE A FRO SUA SPONTE PURSUANT TO THE 

PREVENTION OF DOMESTIC VIOLENCE ACT AND DOUBLE 

JEOPARDY PRECLUDES REINSTATEMENT OF THE FRO.

II. THE TRIAL COURT FAILED TO CORRECTLY APPLY 

AND WEIGH THE CARFAGNO FACTORS.

III. IN DOMESTIC VIOLENCE CASES THE SAME JUDGE 

SHOULD BE ASSIGNED TO THE MATTER FROM 

BEGINNING TO END.

In Cesare v. Cesare, 154 N.J. 394 (1998), our Supreme Court 

addressed the standard of review we apply to domestic violence 

matters. The Court stated:

The general rule is that findings by the trial 

court are binding on appeal when supported by 

adequate, substantial, credible evidence. 

Deference is especially appropriate when the 

evidence is largely testimonial and involves 

questions of credibility. 

Because a trial court hears the case, sees and 

observes the witnesses, [and] hears them 

testify, it has a better perspective than a 

reviewing court in evaluating the veracity of 

witnesses. Therefore an appellate court 
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should not disturb the factual findings and 

legal conclusions of the trial judge unless 

[it is] convinced that they are so manifestly 

unsupported by or inconsistent with the 

competent, relevant and reasonably credible 

evidence as to offend the interests of 

justice.

[Id. at 411-12 (citations omitted)

(alterations in original).] 

"On the other hand, where our review addresses questions of 

law, 'a trial judge's findings are not entitled to the same degree 

of deference if they are based upon a misunderstanding of the 

applicable legal principles.'" N.T.B. v. D.D.B., 442 N.J. Super.

205, 215 (App. Div. 2015) (quoting N.J. Div. of Youth & Family 

Servs. v. Z.P.R., 351 N.J. Super. 427, 434 (App. Div. 2002)). The 

appropriate standard of review for conclusions of law is de novo. 

S.D. v. M.J.R., 415 N.J. Super. 417, 430 (App. Div. 2010) (citing 

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 

378 (1995)).

Pursuant to the PDVA, a court may vacate an FRO upon good 

cause shown. N.J.S.A. 2C:25-29(d). Carfagno establishes eleven 

factors a court must weigh to determine if a defendant established 

the requisite good cause: 

(1) whether the victim consented to lift the 

restraining order; (2) whether the victim 

fears the defendant; (3) the nature of the 

relationship between the parties today; (4) 

the number of times that the defendant has 

been convicted of contempt for violating the 

order; (5) whether the defendant has a 
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continuing involvement with drug or alcohol 

abuse; (6) whether the defendant has been 

involved in other violent acts with other 

persons; (7) whether the defendant has engaged 

in counseling; (8) the age and health of the 

defendant; (9) whether the victim is acting 

in good faith when opposing the defendant's 

request; (10) whether another jurisdiction has 

entered a restraining order protecting the 

victim from the defendant; and (11) other 

factors deemed relevant by the court.

[Carfagno, supra, 288 N.J. Super. at 435.]1

Here, when the trial court granted defendant's first Carfagno

application, it noted plaintiff did not consent to the FRO's 

dissolution because she was not present. However, the facts proved 

defendant never violated the FRO because the parties had no reason 

to interact; specifically, because they did not have children and 

both were in committed relationships. The court made additional 

findings, including defendant's prior insobriety partially 

contributed to the domestic violence incident, and he had been 

sober for nearly eight years and even chaired his sobriety group. 

Further, the court noted defendant attended domestic violence 

counseling and although physically he was a "big guy," defendant 

had health problems that reduced his strength. As to plaintiff's 

good faith, the court noted she did not appear in court, and there 

 

1 In Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 

1998), we stated: "[w]e are in accord with the factor-analysis 

approach to an application for dismissal of a final restraining 

order set out in the well-reasoned opinion of Judge Dilts in 

[Carfagno]."
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were no additional orders in other jurisdictions against 

defendant. The court concluded the Carfagno factors weighed in 

defendant's favor and the FRO was no longer needed to protect 

plaintiff. 

When defendant sought the return of his weapons, the question 

of whether plaintiff was properly served with defendant's motion 

to vacate the FRO was orally raised by the prosecutor. The 

assistant prosecutor maintained plaintiff had not been served, 

because the court did not have plaintiff's correct address on 

file. The assistant prosecutor informed the court plaintiff had 

advised her that she never received the order vacating the FRO,

even though it was sent to the address on file from when the court 

had entered the FRO. The court noted the issue of service required 

review, and ordered a plenary hearing.

On December 14, 2015, counsel for plaintiff appeared in the 

weapons forfeiture hearing to be heard on the dismissal of the 

FRO. The court reiterated it was unable to confirm whether 

plaintiff had been notified of the FRO dismissal hearing, because 

the court's address for plaintiff had not been updated. 

Importantly, the court noted plaintiff had not filed an application 

to reinstate the FRO based on the lack of service of defendant's 

Carfagno motion. Notwithstanding these procedural deficiencies, 

the trial judge reinstated the FRO and ordered a new Carfagno
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hearing over defendant's objection plaintiff had not filed a motion 

to reinstate the FRO. 

On appeal, defendant argues the PDVA does not permit a court 

to reinstate an FRO on its own motion. He asserts, although a 

trial court may revisit an interlocutory order, it cannot sua 

sponte review a final order. Relying on our decision in T.M. v. 

J.C., 348 N.J. Super. 101, 105-06 (App. Div.), certif. denied, 175 

N.J. 78 (2002), defendant argues once a restraining order is 

dismissed, the court no longer has jurisdiction to determine 

whether a restraining order should be entered. Id. at 105 (holding 

a conditional dismissal is improper and stating "[e]ach domestic 

violence complaint represents a separate action in which the court 

must determine whether the TRO will be converted into an FRO. 

. . . [I]f a domestic violence complaint is designated as 

'dismissed' the court loses jurisdiction to adjudicate whether an 

FRO should be entered."). Therefore, because the December 8, 2014 

order dismissing the FRO was final, plaintiff's sole recourse was 

to file a motion for relief of judgment pursuant to Rule 4:50-1, 

which she did not do. Additionally, defendant argues the court 

unfairly shifted the burden of proof to him to seek a dismissal 

of the erroneously reinstated FRO, when plaintiff had the burden 

to show the FRO should not be dismissed. Defendant concludes the 

court exceeded its authority and the intent of the PDVA.
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In reviewing this issue, we find guidance in the State of New 

Jersey Domestic Violence Procedures Manual promulgated by the 

Supreme Court in conjunction with the Office of the Attorney 

General, Department of Law and Public Safety. First issued in 

1991, the manual states: "The New Jersey Domestic Violence 

Procedures Manual is intended to provide procedural and 

operational guidance for two groups with responsibility for 

handling domestic violence complaints in the state of New Jersey 

–judges and Judicial staff and law enforcement personnel." State 

of N.J. Domestic Violence Procedures Manual, Notice at i (2008)

(the manual).

2 When a defendant makes a request to dismiss an FRO 

pursuant to N.J.S.A. 2C:25-29(d), the manual provides "[t]he court 

shall make reasonable efforts to find and notify the plaintiff of 

the request for dismissal but unless good cause is shown, the 

court cannot hold a hearing on this application unless the 

plaintiff is given notice and an opportunity to be heard." The 

manual, supra, § 4.19.4, at IV-28. 

The manual also addresses reinstatement of a dismissed FRO:

If there is no new act of domestic violence 

since the filing of the initial Complaint/TRO 

and the plaintiff seeks to reopen a TRO or FRO 

which has been dismissed, a notice of motion 

must be filed pursuant to Rule 4:50-1.

 

2 The manual may be found online at 

https://www.judiciary.state.nj.us/courts/assets/family/dvprcman.

pdf.
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Once the application has been filed, the case 

is only opened for the purpose of scheduling 

the motion hearing. The restraining order is 

still dismissed on FACTS and the DVCR. 

An application to reinstate the Complaint/TRO 

and restraining order does not "activate" the 

restraining order. The order is not activated 

until and unless both parties are notified, 

the court reviews the file, conducts a 

hearing, makes findings and then reinstates 

the order.

At the hearing, the judge may reinstate the 

order or let the dismissal stand. If 

reinstated, the status of the order would be 

"active" in FACTS and on the DVCR.

[Id. § 4.19.5, at IV-28.] 

Due process is a fundamental right accorded to both parties 

under the PDVA. As our Supreme Court stated:

At a minimum, due process requires that a 

party in a judicial hearing receive "notice 

defining the issues and an adequate 

opportunity to prepare and respond." . . . 

[D]ue process forbids the trial court "to 

convert a hearing on a complaint alleging one 

act of domestic violence into a hearing on 

other acts of domestic violence. . . ."

[J.D. v. M.D.F., 207 N.J. 458, 478 (2011) 

(quoting H.E.S. v. J.C.S., 175 N.J. 309, 321-

22 (2003) (quoting McKeown-Brand v. Trump 

Castle Hotel & Casino, 132 N.J. 546, 559 

(1993)).]

With these procedures and principles in mind, we consider 

defendant's arguments. Here, at the initial hearing to dismiss 

the FRO, the court determined plaintiff had been properly served. 

The question of service did not arise until the first hearing on 
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the weapons forfeiture matter. Then, on the third day of the 

weapons forfeiture matter, counsel for plaintiff spontaneously 

appeared to assert plaintiff had never been served with the motion 

to dismiss the FRO. The court was unable to determine whether it

served plaintiff notice by regular and certified mail, but observed

there was no indication the regular mail had been returned. The 

court further observed plaintiff had made no effort to update her 

contact information with the court.

In our view, the court overlooked fundamental due process 

principles by sua sponte reinstating the FRO in the ancillary 

weapons forfeiture matter. If plaintiff challenged the order 

dismissing the FRO, she was required to file a motion for relief 

pursuant to Rule 4:50-1 in the domestic violence matter, so 

defendant could be heard and there, address the issue of service. 

The manual, supra, § 4.19.5, at IV-28. In so finding, we do not 

inflexibly adhere to the manual requiring a Rule 4:50-1 motion. 

Rather, the facts of this case highlight why a formal application 

is mandatory: defendant was entitled to be heard on the issue of 

whether service was proper. 

Further, Rule 5:4-4(a) and (b)(1)-(2) state:

(a) Manner of Service. Service of process 

within this State for Family Part summary 

actions, including initial complaints and 

applications for post-dispositional relief, 

shall be made in accordance with Rule 4:4-4, 

Rule 5:9A-2, or paragraph (b) of this rule. 
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For initial complaints, substituted or 

constructive service of process outside this 

State may be made pursuant to the applicable 

provisions in Rule 4:4-4 or Rule 4:4-5.

Family Part summary actions shall include all 

non-dissolution initial complaints as well as 

applications for post-dispositional relief, 

applications for post-dispositional relief 

under the Prevention of Domestic Violence Act, 

and all kinship legal guardianship actions. 

Applications for post-dispositional relief 

shall replace motion practice in Family Part 

summary actions. The court in its discretion, 

or upon application of either party, may 

expand discovery, enter an appropriate case 

management order, or conduct a plenary hearing 

on any matter. 

(b) Service by Mail Program. Service of 

process for Family Part summary actions may 

be effected as follows: 

(1) Service by Mail. The Family 

Part shall mail process 

simultaneously by both certified 

and ordinary mail to the mailing 

address of the adverse party 

provided by the party filing the 

complaint or application for postdispositional relief.

(2) Effective Service. Consistent 

with due process of law, service by 

mail pursuant to this rule shall 

have the same effect as personal 

service, and the simultaneous 

mailing shall constitute effective 

service unless there is no proof 

that the certified mail was 

received, or either the certified or 

the regular mail is returned by the 

postal service marked "moved, 

unable to forward," "addressee not 

known," "no such number/street," 

"insufficient address," "forwarding 

order expired," or the court has 
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other reason to believe that service 

was not effected. Process served by 

mail may be addressed to a post 

office box. Where process is 

addressed to the adverse party at 

that person's place of business or 

employment, with postal instructtions to deliver to addressee only, 

service will be deemed effective 

only if the signature on the return 

receipt appears to be that of the 

adverse party to whom process was 

mailed.

Pursuant to Rule 5:4-4(b)(1), service must be effectuated via 

certified and regular mail in summary proceedings involving the 

Act. Under the PDVA, a domestic violence victim's address and 

location remains confidential from a defendant. N.J.S.A. 2C:25-

26(c). Therefore, the clerk of the Family Part effectuates service 

by mail. When a question arises, Rule 5:4-4(b)(2) provides proper 

service may be found if there is no proof the certified or regular 

mail is returned. Furthermore, "[n]ot every defect in service of 

process constitutes a denial of due process qualifying defendant 

for relief from the [] judgment." Pressler & Verniero, Current 

N.J. Court Rules, comment 5.4.2 on R. 4:50-1(d) (2017). 

The same principle applies here. One year after an initial 

finding of valid service, the court was unable to determine whether 

service was effected via certified and regular mail as required 

under Rule 5:4-4(b)(1). However, we note there was no indication 

the regular mail had been returned. Also, defendant pointed out 
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that, even though plaintiff had been aware the FRO was vacated as 

early as September 2015, she made no application to the court to 

reinstate the FRO. 

We reverse the December 15, 2015 sua sponte order reinstating 

the FRO, because applications to reopen a dismissed TRO or FRO 

must be made in the underlying domestic violence matter, not an 

ancillary matter, and must be made by formal motion pursuant to 

Rule 4:50-1. This practice will protect domestic violence victims 

by providing them with formal notice where there is an application 

to vacate the orders of protection, and assure due process for 

defendants.3 We do not visit defendant's arguments regarding the 

second trial judge's Carfagno findings, because the February 22, 

2016 and July 1, 2016 orders the second trial judge entered are

now vacated.

Addressing defendant's remaining arguments, he asserts a 

domestic violence matter can be heard by only one judge. He claims 

he was prejudiced because two different judges heard the 

applications in this matter. Defendant cites to the Conference 

of Family Presiding Judges Presents the Family Division Report on 

Best Practices and Standardization to the Judicial Council, 

 

3 Although it is not an issue raised by defendant, we suggest the 

Conference of Family Presiding Judges consider promulgating formal 

operational guidance requiring plaintiffs to periodically update 

their address with the Family Division. 
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General Recommendation 1 at 30 (July 30, 1999), reciting "[t]he 

underlying philosophy for Family Division case processing should 

be one judge/one case. . . ." 

The principle of "one-judge one-case" is laudable; however, 

we decline to interpret this recommendation as a mandate. This 

is especially so where trial judges are frequently rotated between 

divisions and calendar assignments, the domestic violence calendar 

is high volume, and domestic violence cases are summary in nature 

and must be adjudicated within ten days of filing of the complaint. 

See N.J.S.A. 2C:25-29(a). Rather, we rely on N.J.S.A. 2C:25-29(d) 

which provides:

Upon good cause shown, any final order may be 

dissolved or modified upon application to the 

Family Part of the Chancery Division of the 

Superior Court, but only if the judge who 

dissolves or modifies the order is the same 

judge who entered the order, or has available 

a complete record of the hearing or hearings 

on which the order was based.

Here, there is no indication the court which handled the latest 

Carfagno hearing did not have access to a copy of the complete 

record. 

Lastly, defendant claims he was subjected to "double 

jeopardy" because a Carfagno review was conducted twice. The 

Double Jeopardy Clause of the Fifth Amendment to the United States 

Constitution protects against a second prosecution for the same 

offense after a conviction or an acquittal, and prohibits multiple 
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punishments for the same offense. State v. Widmaier, 157 N.J.

475, 489-90 (1999). A complaint brought under the PDVA is a civil 

action separate and distinct from a criminal action. State v. 

Brown, 394 N.J. Super. 492, 504 (App. Div. 2007). Therefore, a 

double jeopardy defense does not apply to the PDVA. 

Reversed.