RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION
DOCKET NO. A-0942-25
A.L.K.,1 Plaintiff-Respondent, v. B.A.B.,
Defendant-Appellant.
________________________
Submitted August 25, 2026 – Decided August 28, 2026 Before Judges Paganelli and Augostini.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-0253-26.
Einhorn Barbarito Frost Botwinick Nunn & Musmanno, PC, attorneys for appellant (Tamra Katcher, of counsel and on the brief).
Respondent has not filed a brief.
PER CURIAM
1 We use initials in this domestic violence action pursuant to Rule 1:38- 3(d)(9) and (10).
Defendant B.A.B. appeals from a November 6, 2025 order denying his motion to vacate default of the August 20, 2025 final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we vacate the entry of the default FRO and remand for a new trial. The August 8, 2025 amended temporary restraining order (ATRO) shall remain in effect pending the outcome of the new trial.
I.
We recount the pertinent facts as developed during the trial and from the motion record. On July 26, 2025, plaintiff A.L.K. filed a domestic violence complaint, alleging the predicate act of harassment, and was granted a temporary restraining order (TRO) against defendant. The next day, defendant was served with the TRO, which ordered the parties to appear for the FRO hearing on August 5, 2025. On July 28, 2025, at plaintiff's request, the Family Part issued a continuance order changing the first appearance date to August 4, 2025, and directing the parties to appear remotely.
On August 4, 2025, the parties appeared virtually, and the court scheduled an in-person trial date on August 20, 2025.
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On August 8, 2025, plaintiff amended the complaint and TRO to include the predicate act of criminal restraint, N.J.S.A. 2C:13-2, additional allegations of domestic violence, and incidents of prior domestic violence. On August 18, the court staff emailed defendant the ATRO. This amended complaint and ATRO stated that the parties shall appear for a remote hearing on August 20, 2025. (emphasis added). Court staff advised defendant that to request an adjournment he must submit a letter to the court with his contact information and reason for the request. This letter was to be submitted "via JEDS."
On August 18, defendant emailed court staff expressing confusion over the status of the case and inquiring about his eligibility for a public defender. Staff advised him to appear on August 20 for an in-person trial. On August 20, at 12:04 p.m., court staff notified defendant that his adjournment request for the hearing that day had been denied. The FRO hearing commenced at approximately 1:00 p.m.
Defendant did not appear at the August 20 hearing. The Family Part noted that he had requested an adjournment "without good reason" and advised that he would not be coming to court. According to the court, defendant "gave no basis for his failure to appear today," although he was aware of the scheduled trial date. Although the ATRO was emailed to defendant on August 18, the court
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determined that formal service of the amended complaint had not been completed and therefore proceeded solely on the original complaint.
Plaintiff testified that she and defendant had been dating, and explained that she had a child with her former spouse. Plaintiff testified about the events that occurred on July 25 and July 26, 2025 leading up to her request for a TRO. Plaintiff and defendant had a conversation about how their relationship was affecting her son and that the child's therapist suggested defendant not stay over at her apartment every night. Defendant became upset, raising his voice, which prompted plaintiff to ask him repeatedly to leave. However, defendant refused. Plaintiff then took her keys and left the apartment. Defendant continued to text and call her, trying to get her to come back into the apartment and talk. Plaintiff continued to ask him to leave. Ultimately, she returned to the apartment, again telling defendant to leave and that their relationship was over. Despite plaintiff's repeated text messages and verbal requests, defendant refused to leave the apartment.
After she returned to her apartment, defendant followed plaintiff around and continued to berate her for "maybe another hour or two" before she ultimately fell asleep. At 4:30 a.m., plaintiff woke up to find defendant next to her "trying to hold me and rub my back." He continued to touch her and "rant[]
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and rav[e] for probably another two hours." Just before leaving the apartment, defendant said he was "going to ruin [plaintiff's] life," and "ruin every relationship [plaintiff has]." After he left, she discovered that her apartment key and key fob were missing.
The court admitted into evidence defendant's text messages from July 25 to July 26. Plaintiff also moved into evidence an audio-recording of the conversation she had with defendant after returning to the apartment.
Plaintiff testified that she "was terrified for [her] safety" based on defendant's threats and that he had her key. On July 26, plaintiff contacted the police and the locks were eventually changed. Later that morning, she learned from her former spouse that the Division of Child Protection and Permanency came to his apartment to speak with them regarding a referral they received. Plaintiff testified that she believed defendant called in the referral, which was ultimately deemed unfounded.
Plaintiff testified concerning defendant's prior acts of domestic violence against her, including incidents in which he physically blocked her from leaving her room during an argument, became irrationally angry, and sent her a barrage of text messages accusing her of hiding things from him.
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The Family Part found plaintiff's testimony credible and determined she had proven by a preponderance of the evidence the predicate acts of harassment, N.J.S.A. 2C:33-4,2 and criminal restraint, N.J.S.A. 2C:13-2. The court, however, did not make any specific findings as to why an FRO was necessary pursuant to the second prong of Silver v. Silver3 and the factors set forth in N.J.S.A. 2C:25-29(a)(1) to (7). Nonetheless, the court determined plaintiff needed the protection of an FRO to ensure her safety and granted the FRO.
On September 18, 2025, defendant accepted service of the FRO. On or about October 2, having retained counsel, he filed a motion to vacate the default FRO. Defendant asserted there were two conflicting orders: one requiring an in-person appearance, and the other stating that a remote hearing was scheduled for August 20, confusing him as to whether he was obligated to appear in-person for the FRO hearing. He contended he did not purposefully absent himself from the court proceedings and had reached out to court staff seeking clarification and requesting an adjournment.
2 The court did not specify which subsection of N.J.S.A. 2C:33-4 it found defendant to have committed. 3 387 N.J. Super. 112, 125-27 (App. Div. 2007).
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After considering arguments from both parties, the Family Part denied the motion to vacate default because defendant was "well-aware of his requirement to appear in person and he was notified several times" of the court date. The court further noted that defendant had not provided a reasonable basis or good cause for his failure to appear. The court did not find good cause to vacate the default FRO and thus denied defendant's motion to vacate default.
II.
Our review of the Family Part's findings involving an FRO issued after a bench trial is limited. C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App. Div. 2020). "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citing Rova Farms Resort, Inc. v. Invs., Ins. Co., 65 N.J. 474, 484 (1974)). We "accord particular deference to the Family Part because of its 'special jurisdiction and expertise' in family matters." Harte v. Hand, 433 N.J. Super. 457, 461 (App. Div. 2013) (quoting Cesare, 154 N.J. at 412). "Only when the trial court's conclusions are so 'clearly mistaken' or 'wide of the mark' should [we] intervene and make [our] own findings to ensure that there is not a denial of justice." N.J. Div. of Youth & Fam. Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Fam. Servs. v. G.L., 191 N.J.
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596, 605 (2007)). To the extent the Family Part's decision implicates legal questions, we review those legal rulings de novo. Ricci v. Ricci, 448 N.J. Super. 546, 565 (App. Div. 2017) (citing Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
Upon a showing of good cause under the PDVA, "any final order may be dissolved or modified upon application to the Family Part" and such application shall be made to "the same judge who entered the order." N.J.S.A. 2C:25-29(d).4 The term "'good cause' evades a precise definition." Est. of Semprevivo v. Lahham, 468 N.J. Super. 1, 14 (App. Div. 2021) (quoting Ghandi v. Cespedes, 390 N.J. Super. 193, 196 (App. Div. 2007)). However, when addressing the dismissal of a final restraining order, "[t]he linchpin . . . should be whether there have been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal." Kanaszka v. Kunen, 313 N.J. Super. 600, 609 (App. Div. 1998). "In evaluating whether good cause has been shown under the statute to modify or dissolve a final order, a court must consider the non - exclusive list of factors set forth in Carfagno, 288 N.J. Super. at 435." G.M. v. C.V., 453 N.J. Super. 1, 13 (App. Div. 2018).
4 The motion to vacate was also not framed before the Family Part nor on appeal as a Carfagno motion. Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).
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Although defendant's motion to vacate the FRO was not framed as an application to vacate a final judgment under Rule 4:50-1, he now argues that relief from an FRO is warranted pursuant to this Rule. "The [R]ule is designed to reconcile the strong interests in finality of judgments and judicial efficiency with the equitable notion that courts should have authority to avoid an unjust result in any given case." Manning Eng'g, Inc. v. Hudson Cnty. Park Comm'n, 74 N.J. 113, 120 (1977). When deciding whether to vacate default judgment, a court must balance the two competing goals of resolving disputes on the merits and providing finality and stability to final judgments. Although not expressly stated in Rule 4:50-1(a), our caselaw clearly establishes a defendant claiming "mistake, inadvertence, surprise, or excusable neglect," must also demonstrate that he or she has a meritorious defense. Marder v. Realty Constr. Co., 84 N.J. Super. 313, 318 (App. Div. 1964).
Importantly, "[w]e have consistently recognized that the issuance of an FRO 'has serious consequences to the personal and professional lives of those who are found guilty of what the Legislature has characterized as a serious crime against society.'" A.A.R. v. J.R.C., 471 N.J. Super. 584, 588 (App. Div. 2022) (quoting Franklin v. Sloskey, 385 N.J. Super. 534, 541 (App. Div. 2006) (quoting Bresocnik v. Gallegos, 367 N.J. Super. 178, 181 (App. Div. 2004)
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(internal quotation marks omitted))). Given the significant consequences of an FRO and the value we place on deciding cases on their merits, the scales of justice tip in favor of a party seeking relief that provides them with their day in court.
We first address defendant's contention that the Family Part erred by denying his application to vacate default under the good cause standard of N.J.S.A. 2C:25-29(d). Notably, at the outset of the FRO hearing when addressing whether to proceed by default, the court remarked, "if [defendant] shows good cause then the matter can be reopened." Defendant contends the Family Part erred by not reopening the FRO hearing to permit him to participate and present his defense.
We recognize that domestic violence complaints are to be resolved expeditiously, balancing the interests of both parties to a speedy but fair resolution. Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003) (recognizing a "request for an adjournment is addressed to the trial judge's discretion"); see N.J.S.A. 2C:25-29(a) (a hearing shall be held within ten days of the filing of a complaint). "[W]e review a trial court's denial of a request for an adjournment 'under an abuse of discretion standard.'" Escobar-Barrera v.
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Kissin, 464 N.J. Super. 224, 233 (App. Div. 2020) (quoting State ex rel. Comm'r of Transp. v. Shalom Money St., LLC, 432 N.J. Super. 1, 7 (App. Div. 2013)).
In the present case, the August 20 FRO hearing date was the first trial date for the matter, and defendant had not failed to appear for any prior hearings. Also, the court had granted plaintiff's request to adjourn the first appearance date from August 5 to August 4, 2025.
On August 8, plaintiff had not only amended the complaint to add prior instances of domestic violence and information regarding the predicate acts, she also added the predicate act of criminal restraint. Two days before the August 20 FRO hearing, defendant was served with the ATRO via email.5 Although the court stated due process required that it not proceed on the amended complaint because defendant had not been served with the ATRO, it concluded, nonetheless, that defendant had committed both predicate acts of criminal restraint and harassment. This error alone warrants a remand. Moreover, had defendant appeared in-person on August 20 and requested more time to respond to the new allegations, the Family Part likely would have granted him additional time to prepare to address the new predicate act and allegations.
5 "The defendant shall be personally served with the amended TRO order." New Jersey Domestic Violence Procedures Manual (2022); see also N.J.S.A. 2C:25-28(l).
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The conflicting information about the upcoming court hearing was clearly confusing. The August 4 order stated the FRO hearing would be an in-person trial; while the August 8 ATRO stated that the FRO hearing would be a "remote" proceeding. Moreover, the August 4 hearing had been a remote proceeding, which defendant attended. In denying the motion to vacate default judgment, the court did not address these conflicting orders, or its impact on defendant's lack of personal appearance. Also noteworthy are defendant's attempts to communicate with court staff to clarify the status of the matter and to inquire about the appointment of counsel. Under these circumstances, good cause existed to vacate default, reinstate the TRO, and remand the matter for a new FRO hearing.
Defendant did not move to vacate the FRO on Rule 4:50-1 grounds, and the Family Part did not consider vacating the default FRO under this rule. For the first time on appeal, defendant argues "mistake, inadvertence, surprise, or excusable neglect" under Rule 4:50-1(a) as the basis for overturning the Family Part's order. We generally decline to address arguments raised for the first time on appeal. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Because the Family Part erred in not finding good cause to vacate default , we need not address whether the court should have granted defendant's motion
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under Rule 4:50-1(a). We vacate the FRO, reinstate the ATRO, and remand for a new FRO hearing. On remand, because the judge made a credibility assessment in ruling on plaintiff's complaint, the case should be assigned to another judge. R. 1:12-1(d); Pressler & Verniero, Current N.J. Court Rules, cmt. 4 on R. 1:12-1 (2026) ("[A] matter remanded after appeal for a new trial should be assigned to a different trial judge if the first judge had, during the original trial, expressed conclusions regarding witness credibility.").
Reversed, vacated, and remanded for further proceedings in accordance with this opinion. We do not retain jurisdiction.
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