Opinion
DOCKET NO. A-1918-14T1
02-19-2016
K.V., Plaintiff-Respondent, v. E.N., Defendant-Appellant.
Evan F. Nappen, attorney for appellant (Louis P. Nappen, on the brief). Respondent has not filed a brief.
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-164-11. Evan F. Nappen, attorney for appellant (Louis P. Nappen, on the brief). Respondent has not filed a brief. PER CURIAM
Defendant E.N. appeals from a November 14, 2014 order denying his motion to dissolve a final restraining order (FRO) under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35, barring him from contact with plaintiff K.V. A written statement of reasons accompanied the order. We affirm.
The FRO issued on August 2, 2010. We do not have a transcript of the hearing.
In his certification in support of his motion to dissolve the FRO, defendant asserted that although he and plaintiff were friendly from 2009 until 2010, they were never involved "in a sexual or romantic relationship." Defendant's certification also alleges that plaintiff visited in his home on two separate occasions for a weekend, and he visited in her home for a total of six nights.
Despite not having a sexual or romantic relationship with plaintiff, they "shared a cellular telephone bill for a period of time." Those arrangements were not satisfactory to defendant, who claimed that plaintiff was slow to pay her share of the monthly bill, requiring him to regularly contact her about the nonpayment. He further claimed that when he discontinued this arrangement, effectively terminating plaintiff's phone service, she threatened him. Because of the threats, he reconnected her phone in June 2010 contingent upon prompt payment of her share of the bill.
The following month, when he advised plaintiff that he no longer wanted to continue the arrangement, the certification states, she promptly filed the complaint seeking a temporary restraining order (TRO), contending that he had made terroristic threats to her.
Defendant further certified that he was unrepresented during the FRO hearing and did not understand the collateral consequences of the entry of such an order. Due to a lack of understanding of the process, he "may have not specified the correct details for the judge."
Defendant now challenges the FRO judge's finding that he and plaintiff were roommates, or that any other jurisdictional grounds existed for the issuance of a restraining order. He said he has had no contact with plaintiff since the entry of the FRO, that there is no other order now in effect, and that he has never been convicted of violating it. Defendant resides in Pennsylvania and plaintiff in Florida.
Curiously, despite defendant's assertion that he has had no contact with plaintiff in four years, she "learned of my intention to file this motion and called my attorney's office[.]" The upshot of the call, allegedly made in June 2014, was that plaintiff would not agree to dissolution of the FRO although she gave no reason. She did not leave a phone number. As a result of defendant's search online, he was able to provide his attorney with an address for service of the motion.
The basis for defendant's motion was that entry of the FRO was error since the court lacked jurisdiction. Defendant argued that plaintiff was not included within the jurisdictional definition of "victim of domestic violence" found in N.J.S.A. 2C:25-19(d). Lastly, defendant certified that he wished to become a law enforcement officer, and was concerned that unless the FRO was dissolved, he would be unable to do so.
Plaintiff did not appear at oral argument on this application. Counsel represented to the judge that plaintiff had signed a return receipt card verifying her receipt of the motion papers and the notice of the hearing.
The judge denied dissolution after consideration of the factors set forth in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995). In her discussion, she mentioned that the original complaint alleged that defendant made terroristic threats against plaintiff by stating he would "shoot[] her in the face with his shotgun and cut her into pieces." Although plaintiff had not responded to the application, neither did she consent to it. From the judge's review of the transcript of the FRO hearing, plaintiff "objectively feared" defendant. The judge also observed that there were no facts from which to conclude that defendant was attempting to control the victim, defendant had not been the subject of any contempt proceedings, had no other restraining orders entered against him, and in fact claimed he had no contact with plaintiff in four years. The judge noted that defendant's threatening behavior, according to the final hearing transcript, was attributable to alcohol consumption: it was "the alleged cause of the two incidents."
Defendant did not address any current alcohol or drug use in his moving papers and did not engage in counseling. His attorney suggested he enroll in a domestic violence course to enhance his application, however, he did not participate because he felt the FRO was unwarranted. Defendant, who was approximately thirty years old when the application was made, was gainfully employed.
In addition to her discussion of Carfagno, the judge noted that plaintiff had called defendant's lawyer's office to state she was not in favor of dissolving the FRO, which indicated "at least some sort of contact between the parties, due to [plaintiff] having knowledge of [defendant's] intention to dissolve the FRO before filing his motion." Although plaintiff did not participate, the judge nonetheless concluded that she had no basis for finding plaintiff was not acting in good faith.
The judge viewed the basis of defendant's application to be his denial of having committed any acts of domestic violence and the court's lack of jurisdiction. The judge said, defendant's "opportunity to raise these concerns [was] a motion for reconsideration or appeal of the decision. There is no indication that [defendant] filed either" in the time frame allowable to do so.
Despite acknowledging the defendant's opportunity to challenge the issuance of the FRO had passed, the judge opined that, based on her review of the transcript, "the court did not err in concluding that the parties were roommates or 'household members.' The parties' previous history of seeing each other for an extended period of time is sufficient for this court not to disturb the findings of the court in the FRO proceeding." She therefore denied defendant's application.
On appeal, defendant raises the following points of error:
POINT 1
THE COURT BELOW ERRED BY BASING ITS DENIAL WITHOUT EVIDENCE TO SUPPORT RELEVANT FINDINGS.
A. As plaintiff provided no testimony or opposition to the motion, the Court below erred by finding that plaintiff presently fears defendant.
B. The Court below erred in finding "the victim is acting in good faith when opposing defendant's request" when the victim presented no opposition at all.
C. The Court below erred by making findings regarding plaintiff's present fears and opposition without then providing an opportunity for defendant to cross examine the alleged source of those findings.
POINT 2
THE COURT BELOW ERRED BY DENYING RELIEF, IN PART, BECAUSE DEFENDANT DID NOT RECEIVE
COUNSELING WHEN NO COUNSELING HAD EVER BEEN ORDERED, AND NO OPPORTUNITY WAS PROVIDED BY THE COURT BELOW TO ADDRESS ITS SUA SPONTE CONCERNS IN THAT REGARD.
POINT 3
THE COURT BELOW ERRED BY NOT FINDING GOOD CAUSE FOR RELIEF PURSUANT TO R. 4:50 THAT PLAINTIFF SHOULD NOT HAVE BEEN FOUND TO QUALIFY AS A "VICTIM OF DOMESTIC VIOLENCE" AB INITIO OR THAT PLAINTIFF PRESENTLY RESIDES SEVERAL STATES AWAY.
"The scope of appellate review of the trial court's factfinding function is limited." Cesare v. Cesare, 154 N.J. 394, 411 (1998). Generally, such findings "are binding on appeal when supported by adequate, substantial, credible evidence." Id. at 411-12. We accord particular deference to a Family Part judge's factfinding because of that division's special expertise in such matters. Clark v. Clark, 429 N.J. Super. 61, 70 (App. Div. 2012) (quoting Cesare, supra, 154 N.J. at 413). We reverse only if there is "'a denial of justice' because the family court's 'conclusions are [] clearly mistaken' or 'wide of the mark.'" Parrish v. Parrish, 412 N.J. Super. 39, 48 (App. Div. 2010) (quoting N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008)). In this case, although the judge heard no sworn testimony, she had the benefit, which we do not, of the transcript of the original proceedings.
We address defendant's last point first. Under the Act, a defendant may move to dissolve or modify an FRO "[u]pon good cause shown." N.J.S.A. 2C:25-29(d). This provision in the statute delineates the grounds upon and manner in which such applications may be made. Therefore, the characterization of defendant's application as a Rule 4:50-1 request is inapposite. The request was not couched in a Rule 4:50-1 manner before the judge. The statute controls the standard which a movant must meet in order to vacate an FRO. Defendant has failed to meet that standard.
In determining whether defendant demonstrated good cause to warrant dismissal of the FRO, the judge in this case closely considered the Carfagno factors. She balanced them based on the scant information provided by defendant, who bore the burden of providing sufficient proof under Carfagno, and by plaintiff's silence. She had the benefit of the transcript of the original hearing in addition to defendant's certification.
After reviewing each Carfagno factor, the judge concluded that overall, the scale tipped towards denial of the application. Reviewing her decision with the deference accorded such findings made by the Family Part, we are constrained to agree.
Clearly, FROs can be dissolved, and it may be that at some point in the future, there may be adequate grounds for the order's dissolution. However, nothing in the record, other than defendant's understandable desire to be relieved of this onerous burden, justifies dissolution. Although in his certification defendant touches upon his desire to join law enforcement, he is gainfully employed and does not specify a position for which he would be qualified but for the restraining order. We are uninformed, other than defendant's thoughts on the subject, how the continuation of the FRO "prejudices defendant." See Sweeney v. Honachefsky, 313 N.J. Super. 443, 448 (App. Div. 1998).
We are hampered by the fact no transcript of the 2010 hearing was included in the record supplied on appeal. Relying upon the judge's comments after her review, however, it appears that alcohol was identified as an issue during the FRO hearing, yet defendant made no mention of the issue in his certification. Defendant's certification does not establish prejudice from the FRO, merely disagreement with the factual findings made by the judge who issued it.
As to defendant's contention that the judge who denied his application erred by making findings regarding plaintiff's position towards the FRO, we do not agree. The judge noted throughout that because of plaintiff's absence, she could make no finding regarding Carfagno elements such as any continuing fear. She did consider the fact that plaintiff, knowing about the application, did not consent.
In any event, we do not conclude that the judge's decision was "'clearly mistaken' or 'wide of the mark.'" Parrish, supra, 412 N.J. Super. at 39, 48 (quoting E.P., supra, 196 N.J. at 104). In light of the transcript of the original FRO hearing as she described it, and the scant new facts before her, we cannot say that she abused her discretion in denying defendant's application. See Kanaszka v. Kunen, 313 N.J. Super. 600, 605 (App. Div. 1998).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION