April 7, 2015

Divorced couples cannot be required to resolve their post-divorce disputes through mediation if there has been an entry of a final restraining order based on a finding of domestic violence, even if existing property settlement agreements call for disputes to be worked through by mediators, a New Jersey appeals court has ruled.

In a published opinion released April 1, a three-judge Appellate Division panel said requiring a victim of domestic violence to abide by an existing mediation agreement in a PSA runs afoul of protections afforded by the Prevention of Domestic Violence Act.

"When parties agree to mediation at the time of divorce, they do not anticipate the subsequent entry of an FRO," Appellate Division Judge Ellen Koblitz said April 1 in O.P. v. L.G-P. "For reasons of safety, and to conform with the strong public policy of this state, mediation should not be ordered after a subsequent FRO has been entered, even in an effort to conform with the provisions of a PSA."

Judges Susan Reisner and Carol Higbee joined in the ruling.

In this case, Koblitz said, a Union County judge erred when he ordered a divorced woman, L.G-P., to resolve her child support and related disputes through mediation because a domestic violence-based FRO had been entered against her ex-husband. Koblitz said the trial judge was also wrong to suggest that the FRO should be amended to allow for email communication.

Stephanie Hagan, who focuses her practice on matrimonial litigation, said the Appellate Division was "100 percent correct" in its ruling.

"The judge should never have ordered mediation because of the subsequent FRO," said Hagan, of Donahue, Hagan, Klein & Weisberg in Morristown. "Court rules prohibit mediation in any case where there is an FRO. An FRO is entered in an effort to prevent further abuse to the victim."

"Requiring the victim to go through mediation would undermine the purpose of the FRO," Hagan said.

Another matrimonial law litigator, Jeralyn Lawrence, agreed that a judge cannot order mediation when an FRO is in effect.

However, she said the ruling should not be read so as to mean that victims of domestic violence cannot go to mediation if it is their choice.

"Common sense has to prevail, but people are free to choose mediation," said Lawrence, of Norris McLaughlin & Marcus in Bridgewater. "Victims of domestic violence should not be excluded from participation in mediation if they choose to do so."

Victims of domestic violence, Lawrence said, should have the right to change the terms of the FRO in an effort to limit protracted and costly litigation, even if they cannot be ordered to participate in alternative dispute resolution forums.

O.P. and L.G-P. were married in 2006, had one child and divorced in 2009, according to Koblitz's opinion. After another judge found there had been an act of domestic violence, which the ruling does not describe, an FRO was entered against O.P. in December 2010.

As part of their PSA, which they had both signed off on before the divorce became final, they agreed that all disputes about child support and related issues would be handled by a mediator that they both approved of, the opinion said.

The parties returned to court in 2013 and 2014, fighting over a number of issues related to child support, according to the opinion. After L.G-P. rejected the judge's suggestion that she try to resolve her disputes with O.P. by relaxing the ban on email communication, the judge ordered the disputes to be resolved through mediation, as called for by the PSA. L.G-P. then appealed.

Koblitz noted that the PSA itself was an unusual one.

"This arrangement required constant contact between the parties and a level of cooperation seldom found in a divorced couple," Koblitz said. "In fact, the level of animosity between these parties ultimately led to an FRO."

Koblitz said that if an FRO contains a no-contact provision and the victim does not seek contact, a judge in any other future proceeding should not suggest that the victim amend the no-contact calls.

"The judge in this post-judgment matrimonial matter should have assumed that the judge who ordered the no-contact FRO did so pursuant to the appropriate legal standards, and should not have encouraged the domestic violence victim to lessen the protective language of the FRO," Koblitz said.

While it is generally accepted that divorcing couples may agree to ignore settled case law upon mutual agreement, "provisions in a PSA that were reasonable at the time of the agreement … may become unreasonable upon the entry of an FRO," she said.

Mediation is entirely prohibited when there is a domestic violence-related FRO in effect, Koblitz said. Even if the mediation were to be held in a safe environment where the parties are in separate rooms and represented by counsel, bargaining positions could still be affected by the existence of the FRO, she said.

The only available method of resolving disputes when there has been an entry of an FRO is to turn to the court, Koblitz said.

"When circumstances change, the parties may then return to court for a recalculation" of expenses, she said.

"Although returning to court may be inconvenient and costly, alternative dispute resolution methods are not safe when an FRO has been entered," she said.

O.P. represented himself in the appeal. L.G-P.'s attorney, Scotch Plains solo Glenn Gelband, did not return a call seeking comment.

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