                      RECORD IMPOUNDED

                  NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-4730-14T3

A.M.C.,1
                                     APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                        October 21, 2016
v.
                                       APPELLATE DIVISION

P.B.,

     Defendant-Respondent.
___________________________

           Argued September 14, 2016 – Decided October 21, 2016

           Before Judges Fuentes, Simonelli and Gooden
           Brown.

           On appeal from the Superior Court of New
           Jersey, Chancery Division, Family Part,
           Middlesex County, Docket No. FV-12-2153-15.

           Susan McCue argued the cause for appellant
           (Central   Jersey   Legal   Services, Inc.,
           attorneys; Ms. McCue, on the briefs).

           Bette R. Grayson argued the cause for
           respondent (Grayson and Associates, LLC,
           attorneys; Ms. Grayson, on the brief).

     The opinion of the court was delivered by

FUENTES, P.J.A.D.




1
  We use initials to protect the identity of victims of domestic
violence   and  to   preserve  the   confidentiality  of   these
proceedings. R. 1:38-3(d)(9)–(10).
       In this appeal, we are asked to determine whether the trial

court erred when it denied plaintiff a final restraining order

(FRO),      pursuant    to    the    Prevention      of     Domestic     Violence        Act

(PDVA), N.J.S.A. 2C:25-17 to -35, even though it found that her

husband,     a    police     officer,       physically      assaulted        her   on    two

separate occasions over a three-week period.                     Applying the two-

prong analysis we articulated in Silver v. Silver, 387 N.J.

Super. 112, 125–27 (2006), the trial judge found an FRO was not

necessary to protect plaintiff from future acts or threats of

violence     because     plaintiff      "failed      to     establish    even      a    mere

likelihood that the parties would continue to interact in the

future" or that defendant posed a threat to her.

       We   reverse.         The    trial    court    misapplied        the    two-prong

standard we articulated in Silver when it failed to adequately

consider: (1) the inherently violent nature of the predicate

acts   defendant       committed     against       plaintiff    over     a    three-week

period; (2) the fact defendant physically assaulted plaintiff to

prevent     her   from     leaving     the       marital    residence    and       seeking

refuge in a women's shelter; and (3) the parties' history of

domestic     violence,       which    included       both    violent     behavior        and

threats of further violence.                     Under these circumstances, the

need to issue an FRO to protect plaintiff from further abuse by




                                             2                                     A-4730-14T3
defendant is "self-evident."                 Silver, supra, 387 N.J. Super. at

127.

       The record also shows defendant, a City of Newark Police

Officer, was not served with plaintiff's complaint or with the

temporary restraining order (TRO) issued by the Middlesex County

Family Part, as required by N.J.S.A. 2C:25-28(l).                          Further, "the

clerk of the court or other person designated by the court"

failed    to     notify   the       Chief    of   Police      of   the    Newark       Police

Department,       members       of     the     State        Police,   or       "any      other

appropriate law enforcement agency" that a TRO had been issued

against    defendant,          as    required        under    N.J.S.A.         2C:25-28(n).

These    failures       also    violated       the     procedures     for       service      of

process approved by the Supreme Court in the most recent edition

of the New Jersey Domestic Violence Procedures Manual.

       We hold the trial court had an obligation to determine what

caused these violations of law and Supreme Court policy.                                    The

failure to carry out these procedural requirements compromises

the     safety     of     domestic          violence        victims      and    undermines

defendants' constitutionally guaranteed right to due process of

law.     We further hold that the trial court erred as a matter of

public    policy    when       it    considered       the    Judiciary's        failure      to

carry out these legal responsibilities as a factor in favor of

denying plaintiff's application for an FRO.




                                              3                                       A-4730-14T3
                                              I

                                              A

       On     June    9,    2015,     plaintiff         A.M.C.    fled    her       marital

residence in Newark and took refuge in a women's shelter located

in Middlesex County.           Aided by the shelter staff and represented

by Central Jersey Legal Services, plaintiff filed a complaint

that same day in the Family Part, Middlesex County, 2 alleging

that her husband P.B., a police officer in the Newark Police

Department, committed acts of domestic violence3 against her in

the    form     of    terroristic       threats,        N.J.S.A.     2C:12-3,        sexual

assault,4 N.J.S.A. 2C:14-2, physical assault, N.J.S.A. 2C:12-1,

and harassment, N.J.S.A. 2C:33-4.

       The     Family        Part      considered         plaintiff's          ex      parte

application,         as    authorized    by       N.J.S.A.     2C:25-28(i)      and      Rule

5:7A(a),       and    granted       plaintiff       a    TRO     which,   inter        alia,

prohibited      defendant       from    contacting        plaintiff       in    any     way,

enjoined defendant from possessing any firearms, and directed

any law enforcement officer having jurisdiction "to search for

2
  Although defendant committed the acts of domestic violence when
the parties resided in Essex County, venue is also proper "in
the county where the victim of domestic violence is sheltered."
R. 5:7A(f).
3
    See N.J.S.A. 2C:25-19a (defining domestic violence).
4
  Plaintiff, through her counsel, withdrew the sexual assault
charge at the FRO hearing.



                                              4                                     A-4730-14T3
and to seize any issued permit to carry a firearm."                        As required

by     N.J.S.A.   2C:25-28(l),        the       form   order      directed     all    law

enforcement,      including      by     implication            the    Newark     Police

Department,5 to serve defendant with copies of the complaint and

TRO.     The court directed the parties to appear at 8:30 a.m., on

June 18, 2015, for an evidentiary hearing to determine whether

an FRO against defendant was warranted.

       Both parties appeared at the FRO hearing on the date and

time indicated in the TRO and both were represented by counsel.

At   the   hearing,   defendant       testified        he   was      not   served    with

copies of the complaint or the TRO.

            DEFENSE COUNSEL:          How did you find out about
            it?

            DEFENDANT: I got a call from a male voice
            from a 732 phone number saying that I had a
            TRO against me.

                  . . . .

            DEFENSE COUNSEL: And did he send it to you?
            Did he call you? Did . . . you get a copy
            of that?

            DEFENDANT: No.


5
  Defendant's status as a police officer is particularly relevant
here because New Jersey law provides that "[n]otice of temporary
restraining orders issued pursuant to this section shall be sent
by the clerk of the court or other person designated by the
court to the appropriate chiefs of police, members of the State
Police and any other appropriate law enforcement agency or
court." N.J.S.A. 2C:25-28(n) (emphasis added).



                                            5                                  A-4730-14T3
            DEFENSE COUNSEL: What did you do after you
            heard this?

            DEFENDANT: I called my brother and asked
            him, you know, what should I do. And he . .
            . referred me to . . . you.    To a lawyer's
            office.

            DEFENSE COUNSEL: And . . . did you come to
            my office?

            DEFENDANT: Yes.

            DEFENSE COUNSEL: And, if you know, how did
            we find out about this TRO?

                . . . .

            DEFENDANT: Oh, I guess you called . . . the
            New Brunswick Courts and they faxed you over
            a copy[.] I believe that's [how] it went.

            DEFENSE   COUNSEL:  And   that's  [how]     you
            learned about this TRO against you?

            DEFENDANT: I saw the hard copy, yes.

            DEFENSE COUNSEL: And what day did you learn
            about the TRO against you?

            DEFENDANT: This was the . . . 15th was the
            phone call.     I actually saw it in your
            office[.]    [I]t was Wednesday, the 16th,
            maybe.   I don't know.  I'm not sure of the
            date.6

    The parties married in October 2014.        They do not have any

children.      Plaintiff   testified   she   "permanently"    left   her

6
  June 15, 2015 was a Monday. The Family Part issued the TRO on
Tuesday, June 9, 2015.    The FRO hearing occurred on Thursday,
June 18, 2015.   Defense counsel did not request that the trial
court adjourn the FRO hearing to permit defendant more time to
prepare. Cf. H.E.S. v. J.C.S., 175 N.J. 309, 321-25 (2003).



                                  6                            A-4730-14T3
marital   residence   on       June   9,       2015,   because    of     defendant's

physically abusive behavior.               She testified that, as she was

leaving, defendant told her "he would make [her] life hell" and

stated that he "can harm [her] whenever he wants."                         Defendant

then grabbed and squeezed plaintiff's arm with such force that

he left visible bruises.          Plaintiff testified defendant grabbed

her arm for "[a]bout five minutes."                She further testified that

while squeezing her arm, defendant stated "he can hurt [her]

whenever he feels like it."

       Plaintiff offered into evidence photographs depicting the

bruises and discolorations that defendant inflicted on her arm.

In response to her attorney's question, plaintiff testified she

took these photographs "immediately after getting into [a] taxi

. . .     not more than three minutes" after she left the house.

The court admitted the photographs into evidence.

       Plaintiff also testified about an incident that occurred on

June 7, 2015, two days before she left the marital residence.

According    to   plaintiff,      defendant        threw   two     lamps    in    her

direction   "to   start    a   fight."           The   trial     judge   ultimately

rejected plaintiff's account of this event as not credible.                       The

judge accepted defendant's testimony that he played golf that

day.    Defendant's testimony was corroborated by his mother, who

also resides in the house, and by the receipts of his golf trip.




                                           7                                A-4730-14T3
Because this appeal concerns only whether the court should have

issued permanent restraints, plaintiff has not challenged the

court's findings with respect to this incident.

     The trial judge found that sufficient competent evidence

supported       the    second    incident         of    domestic       violence,       which

occurred three weeks before June 9, 2015.                        Plaintiff testified

defendant       "was     very     upset       about      an     Instagram       account."

Defendant "tried to choke [her]" by squeezing "[her] neck very

hard."7        Plaintiff testified defendant also grabbed her arm,

causing visible "red" bruises.                The court admitted into evidence

photographs      plaintiff       took    that     same    day,    minutes      after     the

incident,      which     depicted       the   bruises      to    her    arm    and     neck.

According       to    plaintiff,     these        violent       assaults      caused     her

physical pain and fear.

     Defendant         testified    in    his     own     defense       and   called     his

mother    as    a     witness.      Defendant          denied    ever    assaulting      or


7
  According to plaintiff's appellate brief, the trial judge
improperly found that this assault occurred when "[d]efendant
grabbed [plaintiff] from the shower and attempted to choke her,
leaving marks on her arm and neck."     We agree with plaintiff
that this was an incorrect statement of fact.        Plaintiff's
testimony indicates that defendant tried to choke her because he
"was very upset about an Instagram account." Plaintiff was not
in the shower when this occurred.        The trial judge also
described plaintiff's testimony as indicating that defendant
"broke a phone in December 2014 and hit his car with a tree limb
in April 2005."     This statement is also unsupported by the
record.



                                              8                                  A-4730-14T3
physically hurting plaintiff.         Defendant's mother corroborated

her son's account of their home life.            With respect to the June

9, 2015 incident, defendant testified he spoke to plaintiff when

he saw her leaving with the suitcases, but did not physically

attack her or attempt to stop her from leaving.

     At the conclusion of the FRO hearing, but before making his

final decision, the judge invited counsel to address the court

in summation.       Defense counsel addressed the court first.             She

argued plaintiff had not met her burden of proof on the charge

of harassment because no evidence established defendant's intent

to harass her.       Plaintiff's counsel argued that her client had

established three predicate acts of domestic violence, namely

harassment, terroristic threats, and assault.              Neither attorney

addressed whether an FRO was warranted if the court found that

defendant committed an act of domestic violence.

                                      B

     The    trial    judge    made   specific    factual     findings     that

defendant committed the predicate offense of simple assault on

June 9, 2015, and three weeks earlier on an unidentified date.

Under N.J.S.A. 2C:12-1a(1), a person is guilty of simple assault

if   s/he   "[a]ttempts      to   cause   or    purposely,    knowingly     or

recklessly causes bodily injury to another."            N.J.S.A. 2C:11-1a




                                      9                            A-4730-14T3
defines      "bodily    injury"       as     "physical   pain,       illness    or   any

impairment of physical condition."

       In    support    of    this    finding,     the   trial    judge      noted   the

photographs admitted into evidence depicted plaintiff's physical

condition immediately after the June 9, 2015 incident.                            These

photographs show red marks on plaintiff's left forearm.                              The

judge found the photographs were "certainly consistent with her

vacating the marital home on June 9th, [2015,] [and] getting

into   the     taxi."         The    judge    next   reviewed        the    photographs

depicting the physical trauma plaintiff sustained three weeks

earlier.      One photograph "show[ed] red marks on the left side of

. . . plaintiff's neck."               The other photograph showed similar

bruises around plaintiff's "left biceps."

       The    judge    acknowledged        the    parties     provided      conflicting

testimony with respect to these two incidents.                       Confronted with

such irreconcilable accounts of events, the judge stated that

"[b]ut for the photographs" he would have found the scales of

proof stand "equipoise."              Stated more directly, the judge made

clear that absent the photographic corroboration, "I probably

would not find an act of assault had occurred."

       The   judge     next    addressed      whether    an    FRO    was    warranted.

Addressing defendant directly, the judge stated:

              The first step is, was there an act of
              domestic violence? Mr. [B], I find that you



                                             10                                A-4730-14T3
         did commit       an   act   of    assault   against   the
         plaintiff.

         The second step is, is it necessary for the
         protection of the plaintiff for the issuance
         of a final restraining order.     And we look
         at past history, you have one incident on
         June 7th, [2015,] alleged by the plaintiff,
         about this argument over lamps[.]

                . . . .

         [W]hat I find telling is that the             defendant
         was not served with a copy of the             temporary
         restraining order.   He . . . was              [not] in
         contact with the plaintiff during             that time
         the plaintiff had vacated the home.

         [T]hough I find that there was an assault, I
         don't find that it is necessary for the
         protection of the plaintiff to . . . issu[e]
         . . . the final restraining order at this
         time.

         So, the request for a final restraining
         order is going to be denied and the
         temporary restraining order is going to be
         dismissed.8

    The trial judge thereafter submitted an "Amplification of

Decision," pursuant to Rule 2:5-1(b), which elaborated on his

reasons for denying the FRO.         Addressing the question before us,

the judge expressly acknowledged that the initial failure to

serve defendant with a copy of the TRO influenced his refusal to

issue an FRO.


8
  By order dated June 26, 2015, we granted plaintiff's emergent
application and restored the TRO pending the outcome of this
appeal.



                                      11                             A-4730-14T3
              In determining whether a Final Restraining
              Order is necessary to protect Plaintiff from
              future acts or threats of violence, the
              [c]ourt found that Defendant was completely
              unaware that Plaintiff obtained a temporary
              restraining order, an unawareness evincing
              the type of relationship the parties had
              once   Plaintiff   left  the   marital home.
              Defendant appears to have had no desire to
              have    any   continuing   association  with
              Plaintiff, taking her absence as a sign that
              their marriage was effectively over, because
              Defendant did not call her or attempt to
              communicate with her after she left.

    The judge also noted the couple did not have any children,

and thus would not need to continue interacting as parents.                   The

judge   again      emphasized   that    he   found   the   parties'   testimony

equally credible.        Only the photographs of plaintiff's injuries

tipped the scales in her favor.

              Plaintiff,    however,     provided    pictures
              corroborating her injuries, and because the
              [c]ourt   had    no   reason   to   doubt   her
              credibility   or    the  credibility   of   the
              depictions in the photographs, the [c]ourt
              found she had been assaulted by him.         In
              effect, these photographs made her slightly
              more credible than Defendant, at least with
              regard to those two instances.

    The trial judge next directly addressed his decision to not

issue   an    FRO.     After    recognizing    he    needed   to   consider   the

history      of   domestic   violence   between      the   parties,   the   judge

stated:

              Here, the marriage lasted less than a year,
              and the unproven allegations of domestic
              violence listed in the Complaint would



                                        12                              A-4730-14T3
           indicate   that   Defendant    began   abusing
           Plaintiff in December 2014, two months into
           their marriage.    This means the unreported
           allegations of domestic violence brought
           before the [c]ourt in Plaintiff's Complaint
           comprise most if not all of the history of
           domestic violence between the parties; and
           these, with the exception of the two
           instances   of   assault,   were   found   not
           credible.   Significantly,    there    is   no
           indication of a relationship between the
           parties preexisting their marriage and no
           allegations of domestic violence predating
           the marriage.   There certainly is, however,
           evidence that the parties['] relationship
           ended when Plaintiff left the marital home.
           Consequently, due to the short nature of the
           marriage and the fact the Plaintiff was only
           able to establish two instances of domestic
           violence despite alleging many others, the
           history of domestic violence between the
           parties and the best interests of the victim
           did not dissuade the [c]ourt from its
           finding that a Final Restraining Order was
           not necessary to protect Plaintiff from
           future acts or threats of violence.

                                   II

      Plaintiff argues the trial judge misapplied our decision in

Silver when he denied the FRO because he erroneously focused on

defendant's post-TRO conduct and failed to consider the relevant

statutory factors in N.J.S.A. 2C:25-29a(1) to –(6).          Plaintiff

argues the trial judge ignored or failed to properly consider

the   parties'   history   of   domestic   violence,   N.J.S.A.     2C:25-

29a(1), which included not only actual acts of physical violence

by defendant, but threats that "he can hurt [plaintiff] whenever

he feels like it."     Plaintiff argues her decision to flee the



                                   13                             A-4730-14T3
marital residence and take refuge in a women's shelter shows she

was     in     fear     of   immediate      danger.         N.J.S.A.       2C:25-29a(2).

Plaintiff states an FRO is clearly warranted under the second-

prong        in   Silver     because      the      trial    judge     found   defendant

physically        assaulted        plaintiff    to   stop    her    from    leaving   the

residence.           According to plaintiff, the issuance of an FRO is in

her   best        interests,       N.J.S.A.     2C:25-29a(4),       because     it    will

provide       her     with   the    legal   means     to    prevent    defendant      from

carrying out his threats to physically and psychologically harm

her "whenever he feels like it."

      Defendant argues the trial judge adequately considered the

statutory factors in N.J.S.A. 2C:25-29a and correctly applied

the   two-prong         analysis     in   Silver     to    conclude    that   permanent

restraints were not needed in this case.                      Defendant argues the

trial        judge     correctly     considered       defendant's       conduct      after

plaintiff left the marital residence, which showed defendant did

not attempt to contact plaintiff even when he did not know a TRO

existed.          Defendant also argues his post-TRO conduct supports

the judge's conclusion that he does not constitute a continuing

threat to plaintiff.               Finally, defendant argues the trial judge

correctly considered the brief duration of the marriage and the

lack of children as factors militating against the issuance of

an FRO.        In light of these findings, defendant argues the record




                                              14                                A-4730-14T3
supports the judge's refusal to issue final restraints and the

judge properly exercised his discretionary authority under the

two-prong analytical paradigm in Silver.

    In Silver, we held that the judge at an FRO hearing must

perform two tasks before granting final relief under the PDVA.

Silver, supra, 387 N.J. Super. at 125.                   First, the judge must

determine whether plaintiff proved, by a preponderance of the

credible evidence, that defendant committed one or more of the

predicate acts set forth in N.J.S.A. 2C:25-19a.                 Ibid.     If the

judge finds plaintiff did not meet this burden of proof, the

court must dismiss the complaint.                 But if the court finds a

defendant committed one or more of the predicate acts listed in

N.J.S.A. 2C:25-19a, the judge must determine whether an FRO is

needed to protect the victim.          Id. at 126.

    Here, the trial judge found defendant, a police officer,

physically      assaulted    his   wife      on    two    separate    occasions.

Physical assault falls within the category of predicate offenses

listed in N.J.S.A. 2C:25-19a that inherently and unambiguously

involve   the    use   of   physical   violence      against    a    victim.      A

finding of domestic violence does not require actual violence.

H.E.S., supra, 175 N.J. at 329.             The Legislature's stated public

policy, which guides the enforcement of the PDVA, specifically

stressed that




                                       15                                A-4730-14T3
          the official response to domestic violence
          shall communicate the attitude that violent
          behavior will not be excused or tolerated,
          and shall make clear the fact that the
          existing criminal laws and civil remedies
          created under this act will be enforced
          without regard to the fact that the violence
          grows out of a domestic situation.

          [N.J.S.A. 2C:25-18 (emphasis added).]

Consistent with these guiding principles, we held that

          although [the] . . . determination [as to] .
          . . whether a domestic violence restraining
          order should be issued . . . is most often
          perfunctory and self-evident, the guiding
          standard is whether a restraining order is
          necessary, upon an evaluation of the factors
          set forth in N.J.S.A. 2C:25-29a(1) to -
          29a(6), to protect the victim from an
          immediate danger or to prevent further
          abuse.

          [Silver, supra, 387        N.J.    Super.     at   127
          (emphasis added).]

    In Silver, the parties were in the midst of an acrimonious

divorce, made even more rancorous by a battle for custody and

supervised parenting time over the child of the marriage.                Id.

at 124.    They each filed cross-complaints under the PDVA and

testified that their relationship had been mired in a history of

domestic violence.     Id. at 115.         The trial court found the

defendant/mother physically assaulted the plaintiff/father and

forcibly trespassed into his car.       Id. at 126.

    In an effort to provide a scholarly context to the thorny

legal   question   before   the   panel,    Judge     Fall   surveyed    the



                                   16                              A-4730-14T3
published opinions from this court in search of a clear answer

to   the    following   question:   Despite   finding   that   a    defendant

committed one of the predicate acts listed in N.J.S.A. 2C:25-

19a, when may a court properly refuse to issue restraints?                 Id.

at 126–28.       As is the case with most questions involving the

human condition, the answer depends on the facts.                  That being

said, Judge Fall found a factor that consistently appeared in

most of the cases that upheld the denial of restraints -- the

predicate act did not involve physical violence.           Id. at 122–25;

127–28.

      Thus, courts may consider two key factors when determining

whether to issue permanent restraints: (1) a lack of evidence

demonstrating a history of domestic violence or abuse; and (2)

the commission of a predicate act that does not involve physical

violence against the victim.           Here, the trial judge found the

absence of children supported not issuing final restraints.                 We

disagree.       The Legislature intended "to assure the victims of

domestic violence the maximum protection from abuse the law can

provide[.]"      S.Z. v. M.C., 417 N.J. Super. 622, 625 (App. Div.

2011)      (quoting   N.J.S.A.   2C:25-18).    The   Legislature      defined

"victim of domestic violence" to include:

              [A]ny person who is 18 years of age or older
              or who is an emancipated minor and who has
              been subjected to domestic violence by a
              spouse, former spouse, or any other person



                                     17                              A-4730-14T3
              who is a present household member or was at
              any time a household member. "Victim of
              domestic violence" also includes any person,
              regardless of age, who has been subjected to
              domestic violence by a person with whom the
              victim has a child in common, or with whom
              the victim anticipates having a child in
              common, if one of the parties is pregnant.
              "Victim of domestic violence" also includes
              any person who has been subjected to
              domestic violence by a person with whom the
              victim has had a dating relationship.

              [N.J.S.A. 2C:25-19d.]

       The fact plaintiff did not have children with defendant

should       not   adversely      affect       her    entitlement     to     permanent

injunctive relief under the second-prong of Silver.                        Nothing in

N.J.S.A. 2C:25-19d's text or the PDVA's underlying public policy

found in N.J.S.A. 2C:25-18 suggests that the absence of children

supports      denying    a   victim      of    domestic    violence      the   maximum

protection from abuse the law can provide.                     See S.Z., supra, 417

N.J.   Super.      at   625–26    (providing         examples    where     restraining

orders were granted even though no children existed).

       Conversely,       courts    should          carefully    consider    both     the

presence of children in a household plagued by domestic violence

and    the    parents'    role    in     raising      those    children     when   they

determine whether to issue final restraints against a defendant

and    whether     to    permit    the     defendant      to    interact    with     the

plaintiff for the purposes of parenting.                        As the Legislature

noted:



                                              18                               A-4730-14T3
            [T]here is a positive correlation between
            spousal abuse and child abuse; and that
            children, even when they are not themselves
            physically   assaulted,   suffer   deep   and
            lasting emotional effects from exposure to
            domestic violence.   It is[,] therefore, the
            intent of the Legislature to assure the
            victims of domestic violence the maximum
            protection from abuse the law can provide.

            [N.J.S.A. 2C:25-18.]

      Indeed, domestic violence cases involving parents of young

children present particularly challenging considerations.                   Upon

issuing an FRO in favor of an abuse victim who must interact

with his or her abuser as a parent, a court must be particularly

vigilant to not only enforce the PDVA, but also to fulfill its

"parens patriae responsibility, which authorizes the court to

intervene where it is necessary to prevent harm to a child."

Segal v. Lynch, 413 N.J. Super. 171, 181 (App. Div.) (citing

Fawzy v. Fawzy, 199 N.J. 456, 474-75 (2009)), certif. denied,

203 N.J. 96 (2010).         But this consideration is not relevant

here.

      We    next   review      the   trial    judge's     consideration        of

defendant's conduct after plaintiff left the marital residence

and   the   relative   brief    duration     of   the   marriage   as   factors

weighing against the issuance of an FRO.                As we will explain,

neither consideration is relevant when determining whether final

restraints should have been issued under the second-prong of




                                      19                                A-4730-14T3
Silver.      As we noted earlier, the trial judge found in his

Amplification of Decision that "the parties' relationship ended

when Plaintiff left the marital home."

      These findings are based more on speculation than evidence

in the record.      There is no rational basis for the judge to use

the     duration   of   the    marriage       as    a   reliable   predictor      of

defendant's future conduct with plaintiff, who remains his wife

until the marriage is legally dissolved.                   The duration of the

marriage is not a relevant factor under N.J.S.A. 2C:25-29a(1) to

–(6).       Moreover,   in    the    course    of   his    analysis,     the   judge

minimized one of the principal concerns that drove our analysis

in Silver: Whether the predicate offense involved a violent act.

Silver, supra, 387 N.J. Super. at 127.                    Indeed, in Silver, we

reversed the trial court's decision to dismiss the plaintiff's

complaint because the record showed the defendant committed a

trespass which "was accompanied by an act of violence in the

form of an assault."         Ibid.

      The    second-prong     of     Silver   requires     the   trial    court   to

evaluate the factors set forth in N.J.S.A. 2C:25-29a(1) to -(6)

to determine whether an FRO should be issued.                      This standard

exists to protect the victim from an immediate danger or to

prevent further abuse.              Ibid.     See also N.J.S.A. 2C:25-29b.

When the predicate act is an offense that inherently involves




                                         20                                A-4730-14T3
the use of physical force and violence, the decision to issue an

FRO    "is   most   often      perfunctory      and    self-evident."                Silver,

supra, 387 N.J. Super. at 127.               But even when the predicate act

does not involve physical violence, the trial court must still

evaluate     the    factors     in     N.J.S.A.       2C:25-29a(1)           to     –(6)     to

determine whether an FRO is warranted to protect the victim from

an immediate danger or to prevent further abuse.

       We have noted that "[i]t is clear that the Legislature did

not    intend     that   the    commission      of     any       one    of    these        acts

automatically       mandates     the    issuance       of    a     domestic         violence

order."      The    most    often    cited     potential      misuse         of    the     PDVA

involves the predicate offense of harassment.                      L.M.F. v. J.A.F.,

Jr., 421 N.J. Super. 523, 533–34 (App. Div. 2011).                                Although a

defendant might not use direct physical violence when he or she

engages in the predicate acts of harassment, N.J.S.A. 2C:33-4,

or    stalking,     N.J.S.A.    2C:12-10,9      these       acts       can   cause       great


9
    As construed by our Supreme Court,

             the statutory offense reaches and punishes a
             person who engages in a course of stalking
             conduct even if the person is operating
             under the motivation of an obsessed and
             disturbed love that purportedly obscures
             appreciation of the terror that his or her
             conduct   would  reasonably  cause   to  the
             victimized person.

             [State v. Gandhi, 201 N.J. 161, 170 (2010).]



                                          21                                        A-4730-14T3
emotional harm and psychological trauma.                             Thus, we must never

lose sight of Justice O'Hern's admonition that "there is no such

thing    as    an       act    of   domestic      violence       that    is    not     serious."

Brennan v. Orban, 145 N.J. 282, 298 (1996).

       Guided by these principles, we return to the facts of this

case.      The      trial       court     found      defendant       physically        assaulted

plaintiff on two separate occasions in a period of less than

three weeks.             Although both assaults involved physical violence

and left plaintiff emotionally shaken and visibly bruised, the

second    physical            assault     was   more     egregious      because        defendant

committed      it        to    prevent     plaintiff          from   leaving        the   marital

residence and seeking refuge in a women's shelter.                                  Applying the

standards          in    Silver      to    these        findings,       we     are     satisfied

plaintiff has established the need for an FRO as a matter of

law.

       We reach this conclusion based on: (1) defendant's history

of domestic violence, which included both physical violence and

threats       of    violence,        N.J.S.A.          2C:25-29a(1);         (2)     plaintiff's

decision to leave the marital residence and defendant's acts of

physical       aggression           to     stop        her,    which     established          "the

existence of immediate danger," N.J.S.A. 2C:25-29a(2); and (3)

the fact that, under these circumstances, the issuance of final

restraints          is    indisputably          in      plaintiff's          best     interests,




                                                  22                                      A-4730-14T3
N.J.S.A. 2C:25-29a(4).                  In short, this is the type of case for

which       the     issuance       of     final       restraints        should      have    been

axiomatic         or,    as     Judge    Fall     stated,      "perfunctory          and    self-

evident."         Silver, supra, 387 N.J. Super. at 127.

                                                III

       We     cannot       conclude       our    review      of       this   appeal       without

addressing defendant's allegation that he was not served with

the TRO.           When the Legislature adopted the PDVA, it made the

Judiciary responsible for "protect[ing] victims of violence that

occurs in a family or family-like setting by providing access to

both    emergent         and    long-term       civil    and      criminal      remedies      and

sanctions, and by ordering those remedies and sanctions that are

available to assure the safety of the victims and the public."

N.J.S.A. 2C:25-18.

       The Judiciary must also enforce the procedural mechanisms

established to ensure the expedited review of domestic violence

complaints         and    the     issuance      of     emergent        orders,      which   give

victims       of    domestic       abuse        temporary      protection          from     their

abusers.           The     Judiciary       must      carry     out      these      measures    in

accordance with the basic principle of due process, guaranteed

by     both       the     Fourteenth       Amendment         of       the     United       States

Constitution,            U.S.    Const.    amend.       XIV,      §    1,    and    Article    I,

paragraph 1 of the New Jersey Constitution.                             See H.E.S., supra,




                                                23                                     A-4730-14T3
175 N.J. at 321–22 (quoting McKeown-Brand v. Trump Castle Hotel

& Casino, 132 N.J. 546, 559 (1993)) ("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.'").

     The PDVA imposes on the Judiciary the following specific

obligations:

         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,   and  to   the   police    of   the
         municipality in which the plaintiff resides
         or is sheltered, and shall immediately be
         served upon the defendant by the police,
         except that an order issued during regular
         court hours may be forwarded to the sheriff
         for immediate service upon the defendant in
         accordance with the Rules of Court. If
         personal service cannot be effected upon the
         defendant,   the   court   may   order    other
         appropriate substituted service. At no time
         shall the plaintiff be asked or required to
         serve any order on the defendant.

         [N.J.S.A. 2C:25-28(l).]

     Further, the July 2004 updated version of the New Jersey

Domestic Violence Procedures Manual10 (hereinafter the "Manual")


10
   Since it was jointly adopted by our Supreme Court and the
State Attorney General in 1991, the revised editions of the New
Jersey Domestic Violence Procedures Manual "provide[] procedural
guidance for law enforcement officials, judges and judiciary
staff in implementing the Prevention of Domestic Violence Act."
Supreme Court of N.J. & Attorney Gen. of N.J., State of New
                                                     (continued)


                               24                          A-4730-14T3
provides specific, detailed procedures for serving a domestic

violence complaint, a TRO, and an FRO.     Here, plaintiff filed

her domestic violence complaint and obtained the TRO in the

Family Part of Middlesex County.    Defendant resides in the City

of Newark in Essex County and serves as a police officer in the

Newark Police Department.   Section 4.7 of the Manual describes

the specific steps Judiciary staff members must follow to serve

a defendant who resides in a different county:

         4.7.1 When a temporary or final restraining
         order   is   issued  that   requires   service
         outside the issuing county, the restraining
         order must immediately be brought or faxed
         to   the   Sheriff's   Department   or   other
         designated law enforcement agency in the
         issuing county.

         A.     The Sheriff's Department or other
         designated law enforcement agency in the
         issuing county must bring or fax the order
         and related documents to the sheriff's
         department    or   other    designated law
         enforcement agency in the county of the
         defendant's residence or business.

         B.     The Sheriff's Department or other
         designated law enforcement agency in the
         receiving county, pursuant to local policy,
         will either:
         (1) Execute service on the defendant, or

         (2) Immediately bring or fax the order and
         related documents to the sheriff or other


(continued)
Jersey Domestic Violence Procedures Manual (Oct.        9,    2008),
available                                                         at
http://www.judiciary.state.nj.us/family/dvprcman.pdf.



                               25                            A-4730-14T3
         designated law enforcement agency in the
         municipality in which the defendant resides
         or works so that it can execute service
         accordingly.

         C. The return of service should then be
         faxed back to the sheriff's department or
         other designated law enforcement agency in
         the issuing county, which in turn must
         immediately deliver or fax the return of
         service to the Family Division in the
         issuing county.

         4.7.2 Once service on the defendant is
         attempted, successfully or unsuccessfully,
         the return of service portion of the TRO
         must   be  filled   out   by    the  sheriff's
         department    or   other     designated    law
         enforcement agency and immediately faxed or
         returned to the Family Division prior to the
         scheduled final hearing date.11

11
  The Manual makes clear that its Judiciary sections "reflect[]
court policies existing as of the date of its preparation[.]"
However,

         in the event there is a conflict between the
         Manual and any statement of policy issued by
         the Supreme Court, the Judicial Council or
         the Administrative Director of the Courts,
         that statement of policy, rather than the
         Manual, will be controlling. Other than in
         that circumstance however, the Judiciary
         portion of this Manual is binding on court
         staff. This Manual is not intended to change
         any statute or court rule, and in the event
         a statute or court rule differs from this
         manual, the statute or rule will control.

         [Supreme Court of N.J. & Attorney Gen. of
         N.J., supra, n. 10 (emphasis added).]




                              26                          A-4730-14T3
       N.J.S.A. 2C:25-28(n) also requires that notice of the TRO

"shall    be       sent   by    the    clerk     of   the     court      or   other     person

designated by the court to the appropriate chiefs of police,

members       of    the    State      Police    and    any    other      appropriate        law

enforcement agency or court."                    Here, defendant alleged he was

not    served      with    plaintiff's         complaint      or   the    TRO.        He   also

alleged that he first learned the TRO existed when an anonymous

male called him three days before the scheduled FRO hearing.

Defendant claimed the caller used a telephone with a "732" area

code.     Pursuant to N.J.R.E. 201(b), we take judicial notice that

the area code "732" includes Middlesex County.

       Because defendant was a Newark Police Officer when the TRO

was issued and, as far as we know continues to be employed in

this    capacity,         the   Essex    County       Sheriff's     Department        or    the

Newark Police Department should have had no difficulty serving

him    with    the    domestic        violence      complaint      and    the    TRO.       Yet

despite the clear statutory and regulatory mandates, defendant

was not served with the domestic violence complaint or the TRO.

Moreover,       contrary        to    Subsection      4.7.2    of     the     Manual,      "the

return of service portion of the TRO [was not] filled out by the

sheriff's department or other designated law enforcement agency

and immediately faxed or returned to the Family Division prior

to the scheduled final hearing date."                    Even more troubling given




                                               27                                     A-4730-14T3
defendant's status as a police officer, “the clerk of the court

or other person designated by the court” did not notify the

Chief of Police of the Newark Police Department of the existence

of the TRO, as required by N.J.S.A. 2C:25-28(n).

      Under    these    circumstances,         it    would   have     been     entirely

reasonable for defendant, who was represented by counsel, to

have requested that the trial court adjourn the FRO hearing to

enable him to prepare his defense.                  See H.E.S., supra, 175 N.J.

at 323 (citing H.E.S. v. J.C.S., 349 N.J. Super. 332, 342–43

(App. Div. 2002)).          Defendant did not request an adjournment.

Notwithstanding defendant's failure to object, the trial judge

had   an    independent     duty     to    determine         the     cause    of    this

systematic failure.         Both the PDVA and the Manual, which the

Supreme Court adopted to implement the PDVA, impose specific

obligations on the Judiciary to ensure that victims of domestic

violence    are    protected    from      abuse.       These       sources    of    legal

authority     also     impose   a   concomitant         responsibility         on    the

Judiciary     to   ensure   that    individuals        charged      with     committing

domestic violence offenses are treated fairly and receive the

full panoply of due process rights guaranteed by our federal and

State constitutions.

      "The temporary restraining order's purpose is to provide

the domestic violence victim with a buffer zone of safety and




                                          28                                   A-4730-14T3
shield the victim from the risk of contact with an abuser."

State v. Dispoto, 189 N.J. 108, 120 (2007).                         It greatly concerns

us     that    plaintiff       was   denied          this     protection     because       the

Judiciary failed to perform a material clerical task that the

Legislature expressly entrusted it to perform.                              See N.J.S.A.

2C:25-28(l) and (n).

       We     cannot    overlook     that       defendant's       status    as   a    police

officer should have made service of the complaint and the TRO a

relatively       straightforward          task       to    accomplish.       Judges       must

preserve the integrity of the judicial process, even from the

appearance of impropriety.                Kane Props. v. City of Hoboken, 214

N.J. 199, 221 (2013) (citing In re Cipriano, 68 N.J. 398, 403

(1975)).        Anything that may give a reasonable, fully informed

person      cause      to    doubt   or    question         the   impartiality       of    the

judicial      proceeding       threatens        the       Judiciary's     core   values     of

independence, integrity, fairness, and quality of service.                                 See

N.J.    Judiciary,          Statement     of    Core      Values,   New    Jersey     Courts

(2016), http://www.judiciary.state.nj.us/mission.html.                            Thus, as

a    matter    of   public      policy,        the    trial    court    should    not     have

considered the Judiciary's unexplained failure to carry out its

statutory responsibilities under N.J.S.A. 2C:25-28(l) and (n) as

a factor in favor of denying plaintiff the protections she was

entitled to receive under the PDVA.




                                                29                                   A-4730-14T3
                                    IV

     The trial court's order denying plaintiff an FRO under the

PDVA, despite finding defendant physically assaulted plaintiff

on   two    separate   occasions   within     a    three-week   period,   is

reversed.      Applying the two-prong standard we first articulated

in Silver, we hold that under the uncontested material facts of

this case, plaintiff was entitled to an FRO as a matter of law.

We   also    hold   that,   notwithstanding       defendant's   failure   to

object, the trial judge had an independent duty under N.J.S.A.

2C:25-28(l) and (n) to determine the reason defendant was not

served with a copy of plaintiff's complaint and TRO.




                                    30                             A-4730-14T3
