W.E. v. J.P.

Full title: W.E., Plaintiff-Respondent, v. J.P., Defendant-Appellant.

Court: SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Date published: Mar 13, 2015

DOCKET NO. A-0741-13T4 (App. Div. Mar. 13, 2015)

Opinion

DOCKET NO. A-0741-13T4

03-13-2015

W.E., Plaintiff-Respondent, v. J.P., Defendant-Appellant.

Reisig & Associates, attorneys for appellant (Luke C. Kurzawa, on the brief). Herlihy & Young, attorneys for respondent (Thaddeus D. Niemiec, on the brief).

PER CURIAM

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Accurso. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FV-15-002019-07. Reisig & Associates, attorneys for appellant (Luke C. Kurzawa, on the brief). Herlihy & Young, attorneys for respondent (Thaddeus D. Niemiec, on the brief). PER CURIAM

N.J.S.A. 2C:25-29(d) authorizes the dissolution or modification of a domestic violence final restraining order (FRO) "[u]pon good cause shown." Defendant moved in the trial court for the dissolution of the FRO entered against him in 2007. Judge Marquis D. Jones, Jr., conducted a hearing at which plaintiff testified; defendant did not testify. After applying the factors outlined by Judge Dilts in Carfagno v. Carfagno, 288 N.J. Super. 424, 435 (Ch. Div. 1995),¹ Judge Jones denied defendant's motion.

1 Although Carfagno is a trial court opinion, we later expressed our approval of the factors outlined in that opinion for determining when "good cause" has been presented for the modification or dissolution of an FRO. Grover v. Terlaje, 379 N.J. Super. 400, 408 (App. Div. 2005).

Defendant now appeals, arguing, in a single point:

THE FINAL RESTRAINING ORDER ISSUED AGAINST DEFENDANT-APPELLANT ON MAY 9, 2007 SHOULD BE VACATED IN LIGHT OF THE ENUMERATED FACTORS SET FORTH IN CARFAGNO V. CARFAGNO, AS WELL AS THE FACT THAT THE OCEAN COUNTY LAW DIVISION FAILED TO ADHERE TO SAME IN MAKING ITS DETERMINATION TO DENY THE MOTION TO VACATE.

We find no merit in this argument.

In his thorough oral decision, Judge Jones found the FRO was entered in 2007 because the parties' past dating relationship had become "violent" and was marked by defendant's "controlling" behavior. The judge concluded from plaintiff's credible testimony that defendant

tried to oversee everything she did. And when she tried to end the relationship, he began following her around town, calling, texting and emailing her repeatedly. He showed up at her office on several occasions making threatening remarks, trying to get her fired.

Plaintiff also testified to a few occasions after entry of the FRO in which the parties, who reside within close proximity, found themselves in the same location - first a convenience store and then a church. Although defendant has never been charged with violating the FRO, plaintiff testified that she remains in fear of him despite the passage of time. The judge also expressed concern and rejected defendant's contention that he and plaintiff no longer have a relationship:

If the [c]ourt credits the plaintiff's testimony here today, which it does, the fact of the matter is it disagrees with the position that there is no relationship between the parties today. They are, in fact, community members. That is their relationship. And [that they reside in the same community] allowed [for] the situation at [the convenience store] as well as the church[,] where the defendant could, in fact, exercise control which, in fact, on some level he did.²

For these and other reasons thoroughly considered and discussed as he applied each of the Carfagno factors, Judge Jones found that defendant failed to present "good cause" for the dissolution of the FRO.

2 Plaintiff testified about an encounter with defendant in a convenience store in Ocean Acres:

Q. . . . What happened there?



A. He came in after me, stood behind me in line. I had to go back to the counter to get my sandwich. He stood by the front door and looked right at me, kind of blocked the door and said, congrats.



. . . .



THE COURT: Congrats on what?



THE WITNESS: Getting a restraining order. That was my understanding.



. . . .



Q. And you indicated he stepped in front of the door, blocked the door somewhat?



A. Yes.



Q. After he said that, did he move out of the way or did you have to go out -



A. I had to go around him.

We affirm substantially for the reasons set forth by Judge Jones in his comprehensive and thoughtful opinion.

Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.

CLERK OF THE APPELLATE DIVISION