telephonically December 4, 2017
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Union County, Docket No. FV-20-1510-16.
F. Wolf argued the cause for appellant (Randolph H. Wolf,
attorney; Randolph H. Wolf, on the brief).
Respondent has not filed a brief.
Judges Fisher, Sumners  and Moynihan.
M.C. (Monica) filed a complaint against defendant G.T.
(George) - whom she dated for a while - alleging he
harassed her, pursuant to the Prevention of Domestic Violence
Act (the Act), N.J.S.A. 2C:25-17 to -35. At the trial's
conclusion, the judge expressed concern about both
parties' credibility and, ultimately, concluded the
evidence failed to support a finding of domestic violence;
the judge specifically determined that Monica failed to prove
George acted with a purpose to alarm or annoy. See
N.J.S.A. 2C:33-4. The judge, however, invoked her
"equitable powers" and entered a restraining order
in Monica's favor. In appealing, George contends the
judge exceeded her authority. We agree.
reversing, we need not delve into the parties' factual
assertions or the judge's findings about what transpired
between these parties. We defer to the judge's findings
that no act of domestic violence occurred. See Cesare v.
Cesare, 154 N.J. 394, 411-13 (1998). We focus only on
the judge's invocation of her equitable powers to enter a
restraining order despite the absence of an act of domestic
support of the order under review, the judge relied solely on
P.J.G. v. P.S.S., 297 N.J.Super. 468 (App. Div.
1997). There, the parties filed cross complaints pursuant to
the Act, alleging the other engaged in assaultive conduct.
After a joint hearing on both matters, the judge found P.S.S.
(Paul) sustained his claim against P.J.G. (Patricia); he
entered a final restraining order. In Patricia's action
against Paul, the judge found Patricia was unable to prove
Paul committed an act of domestic violence but he entered
restraints against Paul notwithstanding. A panel of this
court vacated the restraints entered in Patricia's favor
and remanded for dismissal of her complaint against Paul; the
panel reasoned that "unless a finding is made that the
person charged with conduct violative of the Act has
committed an act of domestic violence, the court lacks a
jurisdictional basis to enter a final restraining
order." Id. at 471. We agree; the Act does not
authorize entry of a final restraining order absent
preponderating evidence that the defendant committed an act
of domestic violence. See Silver v. Silver, 387
N.J.Super. 112, 125 (App. Div. 2006). But, in
P.J.G., the panel also held that in the absence of a
required element, such as an act of domestic violence, a
family judge may still - so long as consistent with the
Act's intendment, id. at 471-72 - enter
restraints through invocation of the judge's "ample
inherent power, " id. at 471. Consequently, the
P.J.G. panel held that Paul's own domestic
violence action, id. at 473 - in which he proved
that Patricia assaulted him and in which he demonstrated an
entitlement to a final restraining order for his protection -
also provided a vehicle for the imposition of restraints
against him despite Patricia's inability to prove Paul
committed an act of domestic violence. In reaching this
arguably incongruent conclusion, the P.J.G. panel
relied on N.B. v. T.B., 297 N.J.Super. 35, 42 (App.
Div. 1997), where another panel concluded a family judge may
use evidence elicited during a failed domestic violence
action to support the issuance of restraints in the
parties' pending matrimonial action.
is no doubt that P.J.G.'s holding, particularly
when compared to N.B., upon which it was based,
permits only the imposition of restraints - based on evidence
heard in the failed domestic violence action - in another
pending case between the parties. In N.B., the
restraints were entered in a pending matrimonial action, and
in P.J.G. the restraints were entered in
Patricia's favor and against Paul in Paul's
cross-complaint. Whatever we might think of these holdings,
they do not support what occurred in the matter at hand.
Here, the judge entered restraints against George and in
Monica's favor in the very action that resulted in
Monica's failure to prove George committed an act of
domestic violence. There being no other pending action, not
even N.B. or P.G.S. permitted the
restraints entered here.
restraining order is vacated and the matter remanded for
entry of a dismissal order. I hereby certify that the
foregoing is a true copy of the original on file in my
 Judge Sumners did not participate in
oral argument. He joins the opinion with counsel's