T.M.S. VS. W.C.P.
A-4900-15T2
In the court's review of a reinstated final restraining order entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 - 35, we conclude the court may not sua sponte reinstate a final restraining order absent a Rule 4:50-1 application by plaintiff. Due process requires the party seeking to reinstate a final restraining order file a motion so defendant may have an opportunity to adequately defend the re-imposition of a final restraining order.
In this case, defendant was deprived of due process because the trial court, after vacating the final restraining order pursuant to N.J.S.A. 2C:25-29(d) and Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), sua sponte reinstated the final restraining order based on plaintiff's claim she was not adequately served with defendant's Carfagno application. When the dispute arose regarding whether plaintiff had been served with defendant's Carfagno application, plaintiff should have asserted her claims via a Rule 4:50-1 motion in the domestic violence proceeding rather than have the final restraining order sua sponte and summarily reinstated in a separate weapons forfeiture hearing.
