Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

May A Final Restraining Order Be Entered Against Me If I Do Not Appear In Court?

            Yes, absent your lawyer showing a judge of the Superior Court of New Jersey “excusable neglect” for your missing the Final Restraining Order court date and therefore the Restraining Order should be readdressed and potentially overruled.  As this is a very high threshold to meet, it is highly recommended that you hire an attorney with great experience in restraining order and domestic violence cases. 

            In A.R. v. D.R., husband D.R. appealed from an order of the Superior Court of New Jersey, Family Part of Morris County, dated May 28, 2015 that denied his motion to vacate a final restraining order the Family Part had entered under New Jersey Statute 2C:25-17 to -35, the Prevention of Domestic Violence Act. After review, the New Jersey Appellate Division reversed the order of the Family Part, because the appellate panel found that D.R. showed excusable neglect for his failure to appear at the hearing since his dyslexia affected his ability to read and understand written materials, the hearing date was on the fourth page of the order and the hearing was scheduled for the day after the temporary restraining order was issued. Additionally, defendant denied he had struck plaintiff and persuasively argued that the trial court had no evidence regarding his income when it set the support amount.

            A.R. and D.R. got married in December of 1987, and had four children together. D.R. had dyslexia, and claimed that his condition made it difficult for him to read. A.R. filed a complaint for divorce in August of 2014, but both she and D.R. continued to live together with the children in the marital home. An argument ensued on November, 2, 2014, over the terms of the divorce and finances. This argument eventually became physical, and A.R. alleged that D.R. jumped on top of A.R., pinned her down, and covered her mouth with his hand. She also alleged that D.R. struck her in her left eye, which she claimed to have cause injuries to her eye and cheek.

The parties argued again the next day. That evening, A.R. went and requested a temporary restraining, which was granted at 9:10 p.m. Among other things, the temporary restraining order prohibited D.R. from entering the marital home and A.R.’s place of employment, restricted him from having any contact with or communicating with A.R., and barred him from following, stalking, or threatening harm to A.R., who was also given temporary possession of the marital house.

Both A.R. and D.R. were ordered to come to court for a final hearing on November 5, 2014. On November 4, 2014, D.R. came home to find police officers waiting for him. He cooperated with the police, and went with them to the police station where he was given a copy of the temporary restraining order. Even though he cooperated with the officers, he did not sign the part of the temporary restraining order that said he acknowledged receipt of a copy of the temporary restraining order.

D.R. was not present in court for the the final restraining order hearing, which proceeded without him. At the hearing, A.R. testified that D.R.’s behavior had become increasingly threatening and violent. She then alleged acts of domestic violence she claimed D.R. had committed. A.R. requested the judge to enter a final restraining order, to protect her from future acts of domestic violence. She further requested the judge to order D.R. to maintain the current status quo of support, and indicated that D.R. deposited $ 7,000 into the family account, every month, for payment of bills.

The Family Part judge stated on the record that he was convinced, by a preponderance of the evidence, that D.R. had committed acts of domestic violence, as per New Jersey Statute 2C:25-19(a). The judge found that D.R. specifically committed harassment under New Jersey Statute 2C:12-1, and assault under New Jersey Appellate 2C:33-4, and further found that there was clearly a serious potential for future acts of domestic violence. The judge concluded that the parents could communicate through text messages, in relation to the children, but would not allow D.R. to have telephone conversations with A.R. Furthermore, D.R. was ordered to pay A.R., $ 7,000 a month for household expenses. This decision was memorialized in a final restraining order dated November 5, 2014. This order stated that D.R. had been served with the temporary restraining order, and failed to appear in court for the final restraining order hearing.

D.R. filed a motion in the Family Part to vacate the final restraining order on March 17, 2014. He stated that he suffered from dyslexia his entire life, and alleged that his condition caused him to experience substantial short term memory problems. He admitted that he and A.R. had gotten into an argument on November 2, 2014, and alleged that A.R. had gotten angry because he would not give in to her financial demands, and that the more he refused her demands, the more “confrontational and antagonistic” she became. D.R. claimed that he never hit A.R. during the argument, but admitted to putting his hand over her mouth, and told her to stop yelling. He further claimed that because of his dyslexia and exhaustive work schedule where he frequently worked twelve to fourteen hour days, he was not able to read the temporary restraining order until 11:00 a.m. on November 5, 2014, and only then did he realize that he was supposed to be in court at 8:30 a.m. that morning. He then rushed to court and expressed to the clerk that the court committed by error holding the hearing without him, and entering a final restraining order based only on A.R.’s claims. He further objected to the $ 7,000 in support he was ordered to pay, and argued that the court inappropriately relied on A.R.’s statement’s alone, and did not ask her about her own income, which he claimed was at least $ 72,000 a year. Moreover, he argued that A.R.’s actions since the final restraining order was entered showed that there was no actual need for a final restraining order, and that she was just using the final restraining order as a form of leverage over him, and was actively enticing him into violating the restraining order.

The judge stated that because D.R. knew he had dyslexia, when he was served with the papers, he should have contacted someone to read and explain the temporary restraining order to him. The judge also noted that the evidence at the hearing was, in his own words, “pretty strong,” and that even though D.R. denied that he ever struck A.R., there was “some indication” that he “put his hands on” her. Moreover, the judge found that A.R. would be harmed if she had to go through another hearing, and determined that D.R. had not made a good faith showing that warranted the final restraining order being vacated. Finally, he ordered D.R. to pay A.R.’s attorney’s fees. D.R. appealed.

On appeal, D.R. argued that the Family Part committed error by: (1) refusing to vacate the the default final restraining order under Rule 4:50-1(a); (2) giving undue consideration to A.R.’s inconvenience in refusing to vacate the final restraining order; (3) failing to properly evaluate the $ 7,000 support obligation the court ordered; and (4) failing to hold a plenary hearing.

The New Jersey Appellate Division explained that on review, a Family Part’s grant or denial of relief under Rule 4:50-1 is given significant deference, and cannot be reversed unless there is a clear abuse of discretion. Therefore, a moving party must show that the decision was made without a rational explanation, departed from established policies, or based on an impermissible basis. A default judgment, or a judgment entered without both parties being present, can only be reversed if the defendant’s failure to appear or answer is excusable under the specific circumstances, and the defendant has a meritorious defense. Excusable neglect may be found by a court if the default was due to an honest mistake.

In A.R. v. D.R., the New Jersey Appellate Division found that the Family Part judge’s exercise of discretion was a mistake, because D.R. showed excusable neglect for his failure to appear for the final restraining order hearing. He was not aware the the hearing had been scheduled for the morning after he received the temporary restraining order, which was understandable because the hearing was scheduled so soon after the temporary restraining order was entered.

Furthermore, the New Jersey Appellate Division found that his defense to the allegation of domestic violence was potentially meritorious. The appellate panel explained that any determination should be made after the court hears testimony from both parties, and makes the necessary findings of credibility. Moreover, D.R.’s argument that a final restraining order is not necessary to protect A.R. from future acts of domestic violence was also potentially meritorious. Finally, the Family Part ordered spousal support of $ 7,000 a month without having any evidence relating to D.R.’s income and expenses. Therefore, the New Jersey Appellate Division reversed the final restraining order, ordered the Family Part to hold a plenary hearing as to whether D.R. committed an act of domestic violence, if a final restraining order was necessary, reconsider the award of attorney’s fees to A.R., and whether to order monetary relief.