                            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                    NOT FOR PUBLICATION WITHOUT THE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,          APPROVED FOR PUBLICATION

                                                 December 5, 2016
      v.
                                                APPELLATE DIVISION
D.S.,

             Defendant-Appellant.

_______________________________________

             Submitted September 20, 2016 – Decided December 5, 2016

             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
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).


                                           2                                     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




                                            3                               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.


                                            4                               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


                                               5                                        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.




                                              6                                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.


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