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Mandrik v. Ferrara

August 15, 2007

KATHLEEN MANDRIK, PLAINTIFF-RESPONDENT,
v.
PAUL FERRARA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Atlantic County, FV-01-1807-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 7, 2007

Before Judges Sabatino and Baxter.

Defendant Paul Ferrara appeals an August 16, 2006 order of the Family Part denying his motion to vacate a Final Restraining Order (FRO) under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, previously entered against him in June 2005. We reverse and remand for a trial on the merits, because of what the court acknowledged was a "procedural imperfection" in the prior entry of the FRO.

The factual record is sparse.

Plaintiff Kathleen Mandrik*fn1 and defendant cohabitated together in an apartment in Somers Point

In the early morning hours of June 6, 2005, plaintiff telephonically applied to the municipal judge in Somers Point for a temporary restraining order (TRO) against defendant. Her TRO application alleged that at 2:40 a.m. that same day, defendant "continually tried [to] gain entry into the couple['s] apartment." This caused plaintiff to be sufficiently "scared [so that she] would not allow the defendant to enter." According to plaintiff, "[a]t that time [defendant] attempted to pry open the front door [and] front slider . . . ." He allegedly "ripped down the exterior phone lines and then broke the rear door window to gain entry into the apartment." Defendant "then began to scream and yell at the plaintiff."

Based upon plaintiff's ex parte allegations, the municipal judge entered the requested TRO, and granted plaintiff exclusive possession of the apartment. The TRO was served by police officers upon defendant, shortly thereafter, at 4:15 a.m. The TRO summoned defendant to appear for a final hearing in the Family Part on June 16, 2005.

Plaintiff and defendant, both without counsel, appeared in the Family Part for the FRO hearing on June 16, 2005. Evidently, before their case was called, the parties were present in the courtroom when the judge heard other cases on the docket and made some comments about the legal significance of an FRO.*fn2

When the present case was eventually reached, neither plaintiff nor defendant was sworn. Instead, the judge had a very brief colloquy with defendant, in which he summarily consented to the entry of constraints. The following is the entire proceeding:

THE COURT: This is Kathleen [Mandrik] v. Paul [Ferrara]. Docket Number is FV-01-1807-05. There was a temporary order on 6/5.

Are you seeking to have the order ...


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