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Carfagno v. Carfagno

November 8, 1995

TARA CARFAGNO, PLAINTIFF,
v.
KEVIN J. CARFAGNO, DEFENDANT.



Thomas H. Dilts, J.s.c.

The opinion of the court was delivered by: Dilts

OPINION

DILTS, J.S.C.

The question presented is whether the defendant has shown good cause to dissolve a final restraining order issued pursuant to the Prevention of Domestic Violence Act of 1990 ("the Act").

PROCEDURAL HISTORY

On May 13, 1992, Ms. Carfagno filed a domestic violence complaint against Mr. Carfagno for allegedly harassing her. The harassment consisted of Mr. Carfagno telephoning Ms. Carfagno four times per day, Mr. Carfagno waiting at Ms. Carfagno's home, and Mr. Carfagno taking Ms. Carfagno's automobile without permission. On May 21, 1992, the court found that Mr. Carfagno committed the above alleged acts of domestic violence and entered a final restraining order against Mr. Carfagno. The order restrains Mr. Carfagno from contacting Ms. Carfagno, except to discuss the welfare of the parties' child in Ms. Carfagno's custody.

On September 3, 1992, Mr. Carfagno pled guilty to contempt of the final restraining order for following Ms. Carfagno, while she was driving, and directing harassing communications toward her. Mr. Carfagno received a noncustodial sentence for this conviction.

Mr. Carfagno requested an order against Ms. Carfagno and on September 16, 1992, the court entered a final restraining order against Ms. Carfagno, restraining her from contacting Mr. Carfagno except to discuss matters involving the welfare of the child.

On March 3, 1994, the court found Mr. Carfagno guilty of contempt for the second time for telephoning Ms. Carfagno, on her car telephone, stating that he was following her. For this conviction, the court sentenced Mr. Carfagno to a 30-day custodial term plus one year of probation. Mr. Carfagno appealed this conviction, and the Appellate Division affirmed the judgment of this court.

Presently, Mr. Carfagno has applied to dissolve the final restraining order pursuant to N.J.S.A. 2C:25-29(d). Counsel for both parties submitted briefs and certifications to support their positions. The court heard argument of counsel and testimony from both parties on November 8, 1995.

Mr. Carfagno argues that the court should dissolve the final restraining order because (1) there have been no incidents between the parties since he was found guilty of contempt for the second time; (2) it is in the best interests of the child that the court dissolve the final restraining order; (3) both parties have "inadvertently violated the orders"; (4) Ms. Carfagno does not presently need the order for protection; and (5) Ms. Carfagno is opposing Mr. Carfagno's request in bad faith to prevent him from obtaining full-time employment with the Beach Haven, N.J., Police Department.

Ms. Carfagno argues that the court should deny Mr. Carfagno's request because (1) there have been incidents between the parties since 1993; (2) she continues to fear Mr. Carfagno; (3) there have not been mutual violations of the final restraining orders; and (4) Mr. Carfagno is motivated to dissolve the final restraining order only to obtain full-time employment with the Beach Haven, N.J., Police Department.

At oral argument, counsel for Mr. Carfagno argued that Ms. Carfagno's assertion of fear lacked credibility. Noting that the court cannot decide credibility on the papers alone, the court scheduled a short plenary hearing where both parties offered testimony. See Harrington v. Harrington, 281 N.J. Super. 39, 47, 656 A.2d 456 (App. Div. 1995) (where the parties' certifications present a genuine issue of material fact, the court must hold a plenary hearing).

At the plenary hearing, Mr. Carfagno testified in part that, during telephone conversations with Ms. Carfagno regarding the child, Ms. Carfagno was verbally aggressive to Mr. Carfagno, resulting in arguments. Ms. Carfagno testified in part that the parties argued most of the time during the telephone conversations. Ms. Carfagno admitted that she did call Mr. Carfagno "a jerk" but that she did so because Mr. Carfagno forgot to pick the child up for visitation after school and the child waited at school for over two hours as a result. Ms. Carfagno asserted that she continues to be afraid of Mr. Carfagno because Mr. Carfagno constantly harassed her for a seven month period before the entry of the 1992 final restraining order, because Mr. Carfagno violated the final restraining order twice, because she believes that Mr. Carfagno is still watching and following her, and because Mr. Carfagno has continued to threaten her.

FINDINGS OF FACT

The court finds that Mr. Carfagno has continued to attempt to assert control and power over Ms. Carfagno. Mr. Carfagno has twice recently provoked Ms. Carfagno to argue in regard to the child. The court notes that Mr. Carfagno has been convicted twice for contempt for violating the final restraining order.

The court also finds that Ms. Carfagno continues to be afraid of Mr. Carfagno, both objectively and subjectively. Ms. Carfagno testified that she feared Mr. Carfagno. The court finds Ms. Carfagno's testimony to be credible despite Mr. Carfagno's assertions that she really does not fear him. Moreover, the court finds that Ms. Carfagno's fear of Mr. Carfagno is objectively reasonable because the final restraining order arose from circumstances where Mr. Carfagno was harassing and following Ms. Carfagno and because Mr. Carfagno has violated this order at least two times by harassing and following Ms. Carfagno. The court's finding that Mr. Carfagno continues to attempt to assert power and control over Ms. Carfagno bolsters the court's finding that Ms. Carfagno objectively fears Mr. Carfagno.

The court also finds that Ms. Carfagno has not consented to dissolving the final restraining order. The court further finds that Ms. Carfagno did not provoke Mr. Carfagno to start arguing with her in regard to the child. The court further finds that Ms. Carfagno is not motivated to prevent Mr. Carfagno from ...


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