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Comas v. Comas

Decided: May 13, 1992.

MAYRA C. COMAS, PLAINTIFF,
v.
JESUS COMAS, DEFENDANT



Healy, J.s.c.

Healy

HEALY, J.S.C.

This case comes before the court on defendant's application for a rehearing on all issues. Specifically, defendant requests a reversal of the prior finding of domestic violence. In the alternative defendant requests a modification of the final order to allow visitation to occur at defendant's residence in Manhattan where defendant now lives with his new wife and second son. Under the existing final order of January 3, 1992, the defendant has no visitation with his son, age eight. Prior to the alleged incident of domestic violence the defendant had visitation

with his son at the home of the paternal grandmother in North Bergen, as agreed by the parties.

The parties were divorced on June 13, 1989 and custody of their son, J, was awarded to the mother. The visitation ordered pursuant to the divorce was to be "liberal and reasonable."

Around Thanksgiving 1991, the parties had discussed allowing J to visit his father at the father's home in New York City. It is unclear from the testimony how often this visitation occurred. However, it is certain that this visitation arrangement became a source of conflict between the parties and that a scheduled visit to Manhattan on December 14, 1991, the date of J's half-sister's birthday, did not come about.

On December 22, 1991, both plaintiff and defendant, as well as their son, were in attendance at the home of the defendant's mother. The parties became involved in a bitter argument that, according to plaintiff, culminated with the defendant physically assaulting her. Plaintiff claimed that the defendant grabbed her upper arms and fiercely shook her as she attempted to depart the premises. Once off the premises, plaintiff immediately proceeded to the North Bergen Police Station where she filed a criminal complaint. She also filed a domestic violence complaint with the Union City Police (plaintiff resides in Union City) and a temporary restraining order (TRO) was issued by the Municipal Court. The TRO ordered the standard no contact restraints, granted temporary custody of J to plaintiff, denied defendant any visitation until the final hearing and set the return date for the final hearing for January 3, 1992.

Plaintiff contends that defendant had notice of the return date but does not dispute that proper service was never effected. Naturally, defendant insists he had no knowledge of the court date and that plaintiff possessed the necessary information to insure proper service. Therefore, it is not surprising that the defendant did not appear at the final hearing. The Superior Court, Chancery Division, Family Part continued the restraints in the TRO including the denial of visitation until

further court order. Upon learning of this result, defendant retained legal counsel and filed the instant application.

Since it was conceded by plaintiff's counsel that proper service was never effected, there is no issue as to this court's subject matter jurisdiction and the same is accepted by all parties.

Based on the plaintiff's testimony of physical assault presented at the rehearing, the court held that the defendant committed an act of domestic violence on the afternoon of December 22, 1991. Pursuant to this finding an amended final restraining order was issued continuing the restraints in ...


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