Opinion
DOCKET NO. A-6226-11T2
05-06-2013
J.M.F., Plaintiff-Respondent, v. G.M.F., Defendant-Appellant.
Robert T. Corcoran argued the cause for appellant (Robert T. Corcoran, P.C., attorneys; Mr. Corcoran and Kevin W. Ku, on the briefs). Matheu D. Nunn argued the cause for respondent (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Mr. Nunn, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Happas.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-000381-03.
Robert T. Corcoran argued the cause for appellant (Robert T. Corcoran, P.C., attorneys; Mr. Corcoran and Kevin W. Ku, on the briefs).
Matheu D. Nunn argued the cause for respondent (Einhorn, Harris, Ascher, Barbarito & Frost, attorneys; Mr. Nunn, on the brief). PER CURIAM
Defendant G.M.F. appeals from the Family Part order of July 24, 2012, denying his motion to dissolve the August 28, 2002 final restraining order (FRO) entered against him on a domestic violence (DV) complaint filed by his former wife, plaintiff J.M.F., pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. We reverse and remand for a plenary hearing.
The parties have five children, the two youngest of which are in college. On August 28, 2002, a FRO was entered by the trial court based upon the consent of the parties and without a final hearing. The FRO arose out of an incident that occurred on August 6, 2002, when defendant grabbed plaintiff's wallet, twisted her arm, and repeatedly pushed her against a wall. Plaintiff alleged prior acts of DV in 1990 and 1995, both denied by defendant. In 1990, defendant allegedly hit plaintiff in the face, knocked her to the ground, and caused her to have a miscarriage two days later. In 1995, defendant allegedly pushed plaintiff out of bed and put his hands around her neck and threatened to kill her. Defendant does not dispute an incident that occurred in 2001, when defendant pushed plaintiff down the stairs in front of the children. The parties were divorced on December 10, 2003.
The following facts are not in dispute. Since the entry of the FRO, there have been no incidents between plaintiff and defendant. The only conversations between the parties have been regarding their children, their children's college plans, and their daughter's engagement. Defendant has had no legal issues and has not committed any acts of DV since the entry of the FRO. Defendant completed the court-ordered Alternatives to Domestic Violence Program, attended private therapy, and met with clergy at his church. On several occasions since August 26, 2008, plaintiff has "hand delivered" letters to defendant's home. The most recent letters are dated July 2, 2012 and July 6, 2012.
On May 14, 2012, defendant filed a motion to vacate the FRO. On June 14, 2012, plaintiff filed a cross-motion for counsel fees. The trial court heard oral argument on July 18, 2012. On July 24, 2012, the court entered an order denying defendant's motion and granted plaintiff counsel fees, accompanied by a written statement of reasons.
In its decision, the court noted "the incidents of [DV] for which plaintiff obtained protection were serious and must not be minimized." The court stated, "plaintiff oppose[d] lifting the restraining order and indicate[d] she [was] still fearful of defendant." The court specifically found plaintiff's fear to be credible. Furthermore, the court found the parties are financially intertwined until their children finish college and they have to communicate regarding their children's financial expenses.
On appeal defendant argues:
POINT ONE:
THE TRIAL COURT'S DECISION WAS NOT SUPPORTED BY ADEQUATE, SUBSTANTIAL AND CREDIBLE EVIDENCE AND THEREFORE MUST BE REVERSED.
POINT TWO:
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING APPELLANT-DEFENDANT'S MOTION TO DISMISS THE FINAL RESTRAINING ORDER WITHOUT HOLDING A PLENARY HEARING.
POINT THREE:
DEFENDANT'S DUE PROCESS RIGHTS WERE VIOLATED WHEN THE TRIAL COURT MADE FACTUAL FINDINGS WITHOUT HOLDING A PLENARY HEARING.
POINT FOUR:
DUE TO THE TRIAL COURT MAKING CREDIBILITY FINDINGS WITHOUT HOLDING A PLENARY HEARING, THE MATTER SHOULD BE REMANDED TO ANOTHER TRIAL COURT.
We do not disturb a trial court's factual findings unless unsupported by "adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), and we pay particular deference to the Family Part's expertise. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
The Prevention of Domestic Violence Act (the Act) is designed to "assure the victims of [DV] the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. In doing so, however, "[t]he Legislature intended to protect the victims — not to punish the person who committed the act of [DV]." Carfagno v. Carfagno, 288 N.J. Super. 424, 434 (Ch. Div. 1995). As part of these offsetting policy considerations, the Legislature included a specific provision in the Act, N.J.S.A. 2C:25-29(d), which authorizes a court to dissolve or modify a restraining order "upon good cause shown." Carfagno, supra, 288 N.J. Super. at 433 (citing N.J.S.A. 2C:25-29(d)); see also Kanaszka v. Kunen, 313 N.J. Super. 600, 608 (App. Div. 1998).
Carfagno delineated eleven factors for courts to consider in evaluating whether "good cause" to vacate restraining order has been demonstrated: (1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol use; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant's request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court. Carfagno, supra, 288 N.J. Super. at 435-42.
In Carfagno, both parties testified at a plenary hearing and the judge, after applying these eleven factors, denied the defendant's motion to vacate. Id. at 432-442. The judge assessed, among other things, the credibility and objective reasonableness of the plaintiff's assertion that she remained in fear of the defendant three years after the FRO had been issued. Id. at 436-38.
Our court has since approved and applied the eleven factors expressed in Carfagno. See, e.g., Kanaszka, supra, 313 N.J. Super. at 607 (adopting the eleven-factor Carfagno analysis); accord Sweeney v. Honachefsky, 313 N.J. Super. 443, 447 (App. Div. 1998). When courts apply and weigh these criteria, "the previous history of domestic violence between the parties must be fully explored and considered to understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim's continued fear of the perpetrator." Kanaszka, supra, 313 N.J. Super. at 607.
To warrant a plenary hearing on the motion to vacate a FRO, such as the one conducted in Carfagno, a defendant must make "a prima facie showing [that] good cause exists for dissolution of the restraining order." Kanaszka, supra, 313 N.J. Super. at 608. "If that burden is met, the court should then determine whether there are facts in dispute material to a resolution of the motion prior to ordering a plenary hearing." Ibid.
We are satisfied that such a plenary hearing is warranted in the present case. The assertions made by defendant in his moving papers were sufficient to provide prima facie support to dissolve the FRO for good cause under the Act. The material facts as to the ongoing need for restraints were sharply disputed in plaintiff's submitted papers. In turn, defendant refuted the contentions of plaintiff in his reply certification. The issue of plaintiff's fear, and defendant's control and dominion over plaintiff need to be explored at the plenary hearing.
Family Part judges hearing domestic violence matters are extremely busy, and we do not intend to impose a further burden upon them. However, in cases such as this, a plenary hearing is necessary. Accordingly, the trial court's denial of defendant's motion to dismiss the FRO is reversed, and the matter is remanded for a plenary hearing. We take no position on the merits. Defendant's argument that a different judge should preside over the hearing is without merit. Our review of the record reveals the trial judge did not make credibility findings.
Reversed and remanded for further proceedings in accordance with this decision. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION