Opinion
DOCKET NO. A-2288-12T2
07-21-2014
S.H., Plaintiff-Respondent, v. L.H., Defendant-Appellant.
B. Michael Borelli argued the cause for appellant. Ryan A. Richman argued the cause for respondent (McCarter & English, attorneys; Mr. Richman on the brief; Debra M. Perry, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Hoffman.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-1152-05.
B. Michael Borelli argued the cause for appellant.
Ryan A. Richman argued the cause for respondent (McCarter & English, attorneys; Mr. Richman on the brief; Debra M. Perry, of counsel and on the brief). PER CURIAM
Defendant L.H. appeals from the December 14, 2012 order denying his motion to vacate a final restraining order (FRO) issued on October 18, 2004, pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to - 35. For the reasons that follow, we remand for the trial judge to reconsider the application after a plenary hearing, make necessary findings of fact, and analyze the legal question in light of the factors outlined in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).
Defendant and plaintiff, S.H., never married but lived together before ending their relationship in 1998. They had one child together, D.H., born in 1996. Prior to the October 2004 FRO, plaintiff filed four domestic violence complaints against defendant between March 1999 and February 2000. All complaints were tried and dismissed.
The Family Part entered the FRO following two incidents. The first incident occurred on October 1, 2004 when defendant and plaintiff were in court because plaintiff sought to change their daughter's last name. Following the judge's decision to hyphenate the daughter's last name, defendant told plaintiff "you will burn in hell." The second incident occurred one week later when defendant created a website with plaintiff's name indicating that he would soon reveal a sex tape that he made with plaintiff during their relationship. Although the website was promptly removed without posting any video, the case proceeded to a final hearing on October 18, 2004, where plaintiff testified she "was threatened with the videotape in the past[,]" she didn't know if it really existed or not, and it was taken "without [her] permission or [her] knowledge."
At the time of the motion hearing, defendant had been married to his current wife for thirteen years, and they have two children together. Plaintiff had been married to her current husband for twelve years, and they also have two children together; however, plaintiff and her husband were about to divorce.
Defendant certified the two families have had ongoing contact during the last eight years regarding the welfare of D.H. and have interacted on numerous occasions, without incident. For example, in November of 2010, plaintiff contacted defendant when she was having issues with D.H. and then met him at a local diner to discuss the issues. Thereafter, numerous follow-up discussions occurred. In 2011, plaintiff invited defendant and his wife to her and her husband's home to take pictures before D.H.'s homecoming dance, and again before another dance. In February of 2012, both families went to a restaurant to celebrate D.H.'s birthday. In March 2012, defendant drove plaintiff and D.H. home following an emergency room visit, at plaintiff's request.
While the FRO permitted defendant to attend D.H.'s activities, it required him to remain fifty feet away. According to defendant, he and plaintiff had a lengthy discussion about D.H. at one of her soccer games in September 2012. Significantly, plaintiff did not address these interactions in her written opposition to defendant's motion nor in her brief on appeal.
At the motion hearing, plaintiff was not represented by counsel, nor was she placed under oath. She explained she attended the birthday dinner at the restaurant only because of pressure from her daughter and her "soon-to-be ex-husband." Plaintiff said she still fears defendant based on his previous history including the incidents that led to the four temporary restraining orders that were dismissed, a previous resisting arrest conviction, and the possibility the sex tape may still exist. Plaintiff further stated the friendship between her soon to be ex-husband and defendant poses a threat to her, claiming "they're in cahoots to get me." She said she feels "very threatened," in part because she lives in an area without a local police department and the response time of the State Police in emergencies has been very slow.
"N.J.R.E. 603 requires that all prospective witnesses be sworn or affirmed." State v. Caraballo, 330 N.J. Super. 545, 554 (App.Div. 2000). In making his ruling, the judge referred to plaintiff's statements as "testimony."
While the motion judge stated plaintiff did not have an objective basis to fear defendant, he denied defendant's motion to dismiss the FRO without further hearing. The judge stated he was denying the motion, without prejudice, because he was not satisfied the duration of the FRO was "sufficiently long enough" to warrant dismissal. Defendant appeals that decision.
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). Relief from an FRO is governed by N.J.S.A. 2C:25-29(d), which requires a showing of good cause.
In Kanaszka v. Kunen, 313 N.J. Super. 600, 607-08 (App. Div. 1998), we adopted the eleven Carfagno factors the trial court should consider when determining whether good cause has been shown:
(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 abuse; (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.]
"[T]he moving party has the burden to make a prima facie showing good cause exists for dissolution of the restraining order prior to the judge fully considering the application for dismissal." 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. Conclusory allegations should be disregarded." Ibid. citing Lepis v. Lepis, 83 N.J. 139, 159, (1980).
When considering Carfagno factor two, whether the victim fears the defendant, the court must look at objective fear, not subjective fear. Carfagno, supra, 288 N.J. Super. at 437-38. "Objective fear is that fear which a reasonable victim similarly situated would have under the circumstances." Id. at 437. "[T]he 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.
The "inquiry into the history of the relationship and prior acts of domestic violence become important to consider in evaluating the necessity for continued protection." Id. at 608. However, "[t]he linchpin in any motion addressed to dismissal of a final restraining order should be whether there have been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal." Id. at 609.
Applying these principles, we are satisfied that the record shows substantial changed circumstances since entry of the FRO that constitute good cause for consideration of dismissal. Certainly, the degree of contact and interaction between the parties certified by defendant, along with the absence of any incidents for eight years and the judge's assessment that plaintiff's claimed fear of defendant lacks "an objective basis," represents a substantial change from the circumstances that were present at the time of the entry of the FRO.
We therefore reverse and remand for the court to hold a plenary hearing with regard to defendant's application and for the entry of appropriate factual findings and conclusions of law. At that hearing, both sides shall be permitted to testify fully concerning all pertinent issues.
Reversed and remanded for further proceedings in accord with this decision.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION