On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, Docket No. FV-07-2950-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and J. N. Harris.
Alan R.*fn1 appeals from the July 12, 2010 final order of the Family Part that dismissed his wife Cari R.'s complaint pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35 for failure to substantiate allegations of domestic violence. Although obviously gratified that the PDVA complaint was dismissed and its temporary restraint vacated, Alan pursues this matter on appeal because of a grievance stemming from the court's sua sponte inclusion of the following reference in the order: "CIVIL RESTRAINTS ISSUED UNDER FM DOCKET." In a separate order entered on the same date, in a then-nascent divorce proceeding (FM-07-2128-10) between the parties, the court ordered, among other things, "that [Alan] is prohibited from residing in the marital home on any day that is not his designated parenting time, however, he may enter and remain in the marital home while [Cari] is at work." It is from this provision that Alan actually seeks review, even though he did not seek leave to appeal from the interlocutory order in the FM proceeding.*fn2 Because we believe that Alan was deprived of sufficient due process protections before he was restrained from the marital home, we reverse and remand for further proceedings.
Alan and Cari were married in 1988. After a lately tumultuous relationship, Alan filed a complaint seeking the dissolution of the marriage on April 7, 2010. As of May 13, 2010, although the complaint had been handed to Cari by Alan in their kitchen, Cari's answer was yet to be filed.*fn3
Four daughters were born of the parties' union, and as of May 13, the four teenagers resided at the marital home. Cari alleged that Alan committed several predicate acts under the PDVA that supposedly occurred during an argument on May 13, just before midnight. After considering the evidence presented by the parties, a local police officer, and from the eldest child, Abby (a pseudonym), the Family Part dismissed the domestic violence complaint, finding that the evidence did not demonstrate the occurrence of any acts of domestic violence. In addition to dismissing the complaint, the court vacated the temporary restraints that had been issued on May 14. Cari did not appeal.
Immediately upon explaining why the complaint should be dismissed, the Family Part stated the following:
Now, I am somewhat troubled by what [Abby] indicated on the stand. And I think she, in a way, was conveying a message for all the children, and whether she felt, since she's the oldest and the adult, that she should be the spokesperson for all the girls. But it's clear that they don't want the parents living together.
And I -- I tend to agree with them. I don't think it would be in the parents' best interest to be living in the house together, in light of what's been going on.
So, since I do have the matrimonial act case in front of me, I am going to enter civil restraints. And the bottom line is I am going to prohibit [Alan] from resuming to reside in the house. And that's on a temporary basis and without prejudice, but I think it would be in the best interests of the girls if that happened right now, especially in light of the fact that [Abby's] going to be leaving shortly, will be out of the country, and I -- assume that she ...