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A.S v. M.M

November 20, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-249-12.

Per curiam.



Submitted: October 31, 2012

Before Judges Axelrad and Haas.

Defendant M.M. appeals from the Law Division's August 22, 2011 final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. Because the FRO was later vacated by order of January 11, 2012, we dismiss the appeal for want of a live controversy.

The parties were married. On August 4, 2011, plaintiff filed a complaint and request for a temporary restraining order (TRO) against defendant under the PDVA. She alleged the predicate offense of assault, stating that about two weeks prior, defendant "slapped her in the face" and also stated defendant "threatens her everyday." A TRO was issued that day and a hearing was scheduled for August 11, 20ll, adjourned by consent to August 22, 2011. Plaintiff amended her complaint on August l6, 20ll to add allegations of harassment, and an amended TRO was issued on that date.

On August 22, 2011, a final hearing was held. Plaintiff testified to an incident that occurred on July 29, 2011, in which defendant allegedly made a throat-slashing gesture towards her. Because this incident was not mentioned in either of her complaints, the Family Part judge offered to declare a mistrial, have plaintiff file another complaint specifically detailing the incident and any other allegations, and provide defendant an adjournment so he could prepare a defense. Defendant declined and requested the matter proceed. At the close of evidence, the judge concluded defendant had committed a terroristic threat against plaintiff, amounting to an act of domestic violence, and plaintiff needed a restraining order to protect her. He thus entered an FRO against defendant.

Thereafter, plaintiff requested dismissal of the FRO and on January 11, 2012, the Family Part judge entered an order dismissing plaintiff's domestic violence complaint, dissolving the FRO, and transferring the support order to a pending matrimonial action.

On appeal, defendant argues: (1) the evidence presented at trial did not support a finding that he made a terroristic threat; (2) the court failed to consider previous history of domestic violence when issuing the FRO; (3) the court violated his due process rights by allowing the pleadings to be amended to conform to the evidence; (4) the complaint is "trivial" and should be dismissed for failure to state a recognizable claim; and (5) the court erred in restricting his visitation with his child by requiring a risk assessment and supervised visits.

Defendant's appellate brief was filed prior to the January 2012 dismissal order. In a subsequent motion for summary disposition, which we denied by order of March 16, 2012, defendant argued, in part, that his appeal should not be dismissed as moot because he "lived under the restraining order and obeyed its terms for a full 6 months" and is thus "entitled to a meaningful judicial review"; "the complaint . . . can never be expunged, and dismissal as moot will leave him without any opportunity for justice" as his "name will always be attached to this ugly incident," and "this complaint will be revealed by a simple public records search." Defendant additionally argues that if he is accused by plaintiff of domestic violence in the future, the complaint will have legal significance because it can be considered as prior history of domestic violence. He further urges that the case presents issues of "significant public interest." We are not persuaded by these arguments.

Based on the vacatur of the FRO, we are satisfied the original issues challenged on appeal have been resolved, rendering the matter moot and any decision on the merits of no practical effect. See DeVesa v. Dorsey, 134 N.J. 420, 428 (1993) (holding that courts generally refrain from rendering advisory opinions or exercising jurisdiction in the abstract); Oxfeld v. N.J. State Bd. of Educ., 68 N.J. 301, 303-04 (1975) (recognizing it is firmly established that controversies which have become moot or academic prior to judicial resolution ordinarily will be dismissed). We explained that there are two basic reasons for this doctrine:

First, for reasons of judicial economy and restraint, courts will not decide cases in which the issue is hypothetical, a judgment cannot grant effective relief, or the parties do not have concrete adversity of interest. Second, it is a premise of the Anglo-American judicial system that a contest engendered by genuinely conflicting self-interests of the parties is best suited to developing all relevant material before the court. [Cinque v. N.J. Dep't of Corr., 261 N.J. Super. 242, 243-44 (App. Div. 1993) (internal citation omitted).]

The collateral consequences defendant references as resulting from the mere issuance of the complaint, TRO and FRO, are speculative and general. See id. at 244 (holding that the potential for adverse collateral consequences from a decision later mooted is speculative and remote, and such appeal will be dismissed). The records of the domestic violence case cannot be expunged under the criminal expungement statute. In re M.D.Z., 286 N.J. Super. 82 (App. Div. 1995). To the extent, however, the alleged throat-slashing gesture becomes relevant in any potential future domestic violence complaint as prior history of domestic violence, the court record will reflect the dismissed FRO, and defendant will have an opportunity to make the due process argument he asserted to us. Furthermore, although N.J.S.A. 2C:25-34 provides for the creation of a central registry of all persons against whom domestic violence restraining orders have been entered or who have been charged with offenses involving domestic violence or violations of court orders involving domestic violence, all such records shall be kept ...

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