Opinion
DOCKET NO. A-3503-14T3
06-24-2016
S.O., Plaintiff-Respondent, v. K.K., Defendant-Appellant.
Kenneth G. Goodman argued the cause for appellant (Law Offices of Allan Marain, attorneys; Mr. Goodman, on the brief). Kathleen Pasquarello Stockton argued the cause for respondent (Archer & Greiner, P.C., attorneys; Ms. Stockton and Tara L. Fircak, on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Rothstadt. On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-768-07. Kenneth G. Goodman argued the cause for appellant (Law Offices of Allan Marain, attorneys; Mr. Goodman, on the brief). Kathleen Pasquarello Stockton argued the cause for respondent (Archer & Greiner, P.C., attorneys; Ms. Stockton and Tara L. Fircak, on the brief). PER CURIAM
Defendant appeals from the Family Part's March 13, 2015 order denying his motion to vacate a September 20, 2006 final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, for the protection of plaintiff, his former girlfriend. On appeal, defendant argues that he "established a prima facie case for termination of the [FRO]," the court erroneously imposed on him the obligation to prove a "compelling personal reason" to vacate the FRO, and the court "confounded plaintiff's subjective fear with the 'objective fear' standard" applicable to his motion. We disagree and affirm.
We affirmed the entry of the FRO in a 2007 unpublished opinion.
In denying defendant's motion, Judge Sherri L. Schweitzer relied upon the papers submitted by the parties. Defendant's supporting certification stated that he had fully complied with the FRO since its entry, there were never any other restraining orders entered against him in any jurisdiction nor were there any criminal convictions on his record, he had "never suffered from drug or alcohol abuse," and he sought the vacating of the FRO because of changed circumstances and the passage of time.
Defendant argued that he needed the FRO vacated because it was "now unjustified" as he has had nothing to do with plaintiff, he was a disabled sixty-one-year-old who had been living outside of New Jersey for roughly three-and-a-half years, and he and plaintiff had no familial or economic ties to each other, having led "separate lives . . . since the FRO was issued." Further, defendant stated that he "fear[ed]" the FRO would "cause [him] financial harm" by "impair[ing his] creditworthiness," he was "personally troubl[ed]" by the FRO's "very existence," and the FRO "would seriously harm [his] relationships with [his] friends and associates in the community should it become known."
Plaintiff responded by filing a cross-motion seeking the denial of defendant's motion, an award of counsel fees, and an advancement of counsel fees "[i]f the court allow[ed] discovery and a plenary hearing." In an accompanying certification, plaintiff described the nature of the parties' three-year dating relationship and the circumstances surrounding the FRO's entry. She referred to her testimony at the domestic violence trial regarding defendant's "harassment and threatening behavior" that included leaving "obscene and perverse" telephone messages and telling plaintiff "he had posted videos . . . on the internet" of her "having sex with him." Plaintiff, a teacher, detailed how defendant threatened to send her students "inappropriate material" that he had described to plaintiff as her performing sexual acts. In addition, she stated that defendant had threatened to, and in fact did, contact her employer and her mother, informing the latter that he intended to release the videos to the police. Also, plaintiff recounted past events during which defendant became physically abusive, at one point "slapp[ing her] in the face and corner[ing her]," and on "other occasions . . . put[ting] his hands around [her] neck." Plaintiff quoted the findings of the Family Part judge who issued the FRO, in which he found that defendant's conduct was "so outrageous, so reprehensible, so obscene and so perverse as to . . . pro[ve] by a preponderance of the evidence that . . . it was done for the purpose to harass or annoy the plaintiff."
Plaintiff addressed the reasons she believed the FRO should not be vacated. She stated, "I continue to fear that, if the FRO is lifted, [defendant] will find a way to harass me and carry through the threats or somehow post videos to the internet. . . . [H]e does not need to be physically in New Jersey or Pennsylvania to [do so]." She explained that she thought she had seen defendant in New Jersey within the last two years, and supplied the court with a copy of a restraining order entered against him by a Pennsylvania court based upon his having "physically assaulted and choked" a former girlfriend while "under the influence of alcohol." Plaintiff also disputed defendant's claim that he was disabled and challenged the logic of his concerns about having the FRO remain in force.
The order was entered in June 2006.
Judge Schweitzer conducted a hearing on March 13, 2015, and after considering the arguments of the parties' counsel, issued an oral decision explaining the court's reasons for denying defendant's motion. In her decision, the judge began by citing the controlling statute, N.J.S.A. 2C:25-29(d), and applicable case law, Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), and Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998) (approving "the factor-analysis approach to an application for dismissal of a final restraining order set out in" Carfagno). She noted that in order for the court to consider his application, defendant was first required to satisfy his "burden to establish a prima facie case of good cause" for vacating the FRO by "demonstrat[ing] substantial changes in the circumstances that existed at the time of the [FRO]." The judge then carefully considered the applicable non- exhaustive Carfagno factors to determine whether defendant met his burden and concluded that he failed to do so. In reaching that conclusion, the judge relied upon plaintiff's objection to the FRO being vacated because of a continuing fear, which the judge gave "great weight" and found to be objectively reasonable. She also relied upon conflicting information about defendant's alcohol abuse and no proof of his having participated in any counseling. The judge gave particular weight to the nature of the type of harassment that established the predicate offense for the FRO and defendant's ability to resume those types of acts while residing outside New Jersey. She also considered defendant's stated reasons for wanting the FRO vacated and found that they were without any merit and, inferentially, did not establish any prejudice by its continuation.
This section of the PDVA states:
Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.
[N. J.S.A. 2C:25-29(d).]
In Carfagno, the court stated:
To accomplish the goal of protecting the victim, courts should consider a number of factors when determining whether good cause has been shown that the final restraining order should be dissolved upon request of the defendant: (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 434-35.]
The judge actually found plaintiff's fear to be both subjectively and objectively reasonable, stating that "you can't separate them from each entirely," but acknowledging there could be cases where a plaintiff's "subjective fears [could be found] highly unreasonable." --------
After placing her reasons on the record, Judge Schweitzer entered an order denying defendant's motion. This appeal followed.
The scope of our review of the Family Part's orders is limited. Cesare v. Cesare, 154 N.J. 394, 411 (1998). We do not disturb a trial court's factual findings unless unsupported by "adequate, substantial, and credible evidence," N.J. Div. of Youth & Family Servs. v. R.G., 217 N.J. 527, 552 (2014), and we pay particular deference to the Family Part's expertise. Cesare, supra, 154 N.J. at 412-13.
Applying this deferential standard, we conclude that Judge Schweitzer correctly determined that the FRO should not be vacated. We affirm substantially for the reasons stated by the judge in her thoughtful oral decision. We add only the following comments.
"When confronted with an application to dissolve a final restraining order," for which the "protection of the victim [is] the primary objective, the court must carefully scrutinize the record and carefully consider the totality of the circumstances before removing the protective shield." Kanaszka, supra, 313 N.J. Super. at 605. "[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." Id. at 607.
In reviewing Carfagno factor two, the victim's fear of the defendant, the test is whether the victim has an objective 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. The standard is objective fear because "[t]he duration of an injunctive order should be no longer than is reasonably required to protect the interest of the injured party." Id. at 438 (quoting Trans Am. Trucking Serv., Inc. v. Ruane, 273 N.J. Super. 130, 133 (App. Div. 1994)). If a subjective standard were to be applied, the scope of the injunction might be broader than is reasonably necessary to protect the victim and would unnecessarily infringe on the defendant's rights. Ibid.
We understand from the judge's decision here that she ultimately relied upon a finding that plaintiff's fear of defendant was objectively reasonable, even though the judge made a fleeting reference to plaintiff's fear being subjectively reasonable. We discern from the judge's statements that she found plaintiff's objectively reasonable continuing fear of defendant to have arisen from plaintiff's subjective fears that were created by the original incidents of domestic violence. We have no reason to conclude that the judge applied the wrong standard to defendant's application.
To the extent that we have not specifically addressed any of defendant's other contentions, we find them to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION
Additionally, a court must consider whether the continuation of the FRO "prejudices defendant" because that "is what good cause is all about." Sweeney v. Honachefsky, 313 N.J. Super. 443, 448 (App. Div. 1998).