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J.M.A. v. M.W.P.

Superior Court of New Jersey, Appellate Division

October 10, 2013

J.M.A., Plaintiff-Respondent,
M.W.P., Defendant-Appellant.


Submitted August 13, 2013

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-1499-12.

Reisig & Associates, attorneys for appellant (Luke C. Kurzawa, on the brief).

Respondent has not filed a brief.

Before Judges Lihotz and Guadagno.


Defendant M.W.P. appeals from a final restraining order (FRO) entered by the Family Part on March 8, 2012, after a hearing in an action brought by plaintiff pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35.

We have learned that on November 30, 2012, at plaintiff's request, her domestic violence complaint was dismissed and her final restraining order was vacated. We would ordinarily decline to reach the merits of such an appeal and dismiss it on grounds of mootness. See City of Camden v. Whitman, 325 N.J.Super. 236, 243 (App. Div. 1999) (holding courts do not resolve issues that have become moot due to intervening events). However, defendant urges that we decide his appeal on the merits. Without citing any authority, defendant maintains the issue here is not moot and claims there is a "fundamental difference" between a dismissal by the Law Division at the request of plaintiff and the overturning of the FRO on appeal. Defendant argues that if he prevails on appeal, "the . . . FRO would presumably be vacated and removed from the [d]efendant's record entirely." We disagree.

First, the FRO has already been vacated. Rule 2:2-3(a) governs the right to appeal to the Appellate Division from "final judgments of the Superior Court trial divisions . . . ." Now that the Law Division has vacated the FRO and dismissed plaintiff's complaint, there is no final order to appeal. Second, were we inclined to vacate the FRO, we can discern no different effect such a reversal would have on defendant. We find no support for defendant's claim that "an FRO that was ultimately overturned on appeal would have less of a negative impact (if any at all) than an FRO that was vacated at the request of the [p]laintiff."

In enacting the PDVA, the Legislature did not intend that every final restraining order issued pursuant to the Act would be "forever etched in judicial stone." A.B. v. L.M., 289 N.J.Super. 125, 128 (App. Div. 1996). Indeed, the PDVA provides that "[u]pon good cause shown, any final order may be dissolved or modified upon application" to the same Family Part judge who issued the order or to one with access to "a complete record of the hearing or hearings on which the order was based." N.J.S.A. 2C:25-29(d); see also Mann v. Mann, 270 N.J.Super. 269, 274 (App. Div. 1993); Carfagno v. Carfagno, 288 N.J.Super. 424, 434 (Ch. Div. 1995).

Although we have not been provided with the record of the November 30, 2012 dismissal, we presume the trial court carefully considered the factors set forth in N.J.S.A. 2C:25-29(a) before removing the shield of protection afforded by the restraining order, see Torres v. Lancellotti, 257 N.J.Super. 126, 131 (Ch. Div. 1992), and concluded that plaintiff established "good cause" to dissolve the restraints. See Kanaszka v. Kunen, 313 N.J.Super. 600, 607 (App. Div. 1998).

N.J.S.A. 2C:25-34 authorized the Administrative Office of the Courts (AOC) to "establish and maintain a central registry of all persons who have had domestic violence restraining orders entered against them, all persons who have been charged with a crime or offense involving domestic violence, and all persons who have been charged with a violation of a court order involving domestic violence."

The coding system used by the AOC in its Domestic Violence Central Registry guide, employs the following categories:

ACTIVE New Case - no result at this time
DISMISSED No restraining order in effect
ACTIVE/RO Restraining order in effect
ACTIVE/FRO Final restraining order in effect
ACTIVE TRO EXT Temp[orary] restraining order in effect – extended indefinitely
ACTIVE/AMD TRO Amended temporary restraining order in effect
ACTIVE/AMD FRO Amended final restraining order in effect
REGISTERED A restraining order from another state has been registered in New Jersey
TRANSFER Case has been transferred to another county.
[State of New Jersey, Domestic Violence Procedures Manual, 26 (2008 ed.), cman.pdf (last viewed October 4, 2013)]

The central registry does not distinguish between a dismissal entered by the trial court or an appellate court. Therefore defendant cannot demonstrate prejudice in our failure to consider the merits of his appeal.

An issue is considered moot when an appellate decision "can have no practical effect on the existing controversy." Greenfield v. New Jersey Dep't of Corrections, 382 N.J.Super. 254, 257-58 (App. Div. 2006). We are satisfied the original issue challenged on appeal has 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).

The appeal is dismissed as moot.

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