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In re Kanaszka

July 08, 1998


Before Judges King, Cuff and Fall.

The opinion of the court was delivered by: Fall, J.s.c. (temporarily assigned).

[9]    Argued telephonically: June 1, 1998 *fn1

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County.

In this appeal we examine the procedure and criteria to follow - 1 -in considering an application to dismiss a final restraining order entered pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -33. Defendant appeals from denial of his application to dissolve a final restraining order. We affirm.

The parties were involved in a dating relationship for more than two years. Plaintiff filed a domestic violence complaint against defendant on September 25, 1995. The record supplied does not contain a copy of the actual complaint, although a "Family Court Affidavit" executed by plaintiff on September 25, 1995, completed as part of the complaint procedure, is submitted. That affidavit details a history of alleged assaultive and threatening conduct by defendant. After a hearing in which both parties participated, a final restraining order was entered on October 3, 1995 by Judge Colalillo. On February 12, 1997 defendant filed a motion seeking dissolution of the restraining order. In his supporting certification, defendant states he has fully complied with the restraining order: he has had no oral, written or personal communication or contact with plaintiff since October 3, 1995; he has not been the subject of any domestic violence allegations or complaints; he does not have a dependence on or abuse alcohol or drugs; he has been in good moral standing in his community and never been convicted of a crime; and he desires to pursue a career in law enforcement but cannot do so because of the restraining order. See 18 U.S.C.A. §922(g)(8)(prohibiting persons from- 3 -possessing weapons where there is a domestic violence restraining order against them).

Plaintiff filed a certification in opposition. She agrees defendant has not violated the final restraining order, but expresses continued fear of him. She outlines a detailed history of mental and physical abuse perpetrated against her by defendant during their dating relationship. Plaintiff states the viability of the restraining order and fear of reprisal are the only things saving her from defendant's mental and physical abuse. Plaintiff contends she is in counseling due to defendant's abuse and has been unable to have a relationship with a man, for fear of being abused.The motion was heard before Judge DiCamillo on March 21, 1997, apparently due to the reassignment of Judge Colalillo. The Act addresses the issue of requests for dismissal of final restraining orders, as follows:

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:25-29d.]

Defendant did not support his motion to dismiss with a transcript of the October 3, 1995 hearing.

Domestic violence is a serious problem in our society. It consists of a pattern of abusive and controlling behavior injurious to its victims. Cesare v. Cesare, N.J. , (1998) (slip op. at 2). Those who commit acts of domestic violence have an unhealthy need to control and dominate their partners and frequently do not stop their abusive behavior despite a court order. State v. Hoffman, 149 N.J. 564, 585 (1997). The Act was intended to assure victims of domestic violence the maximum protection from abuse the law can provide. N.J.S.A. 2C:25-18. See Cesare, N.J. at (slip op. at 4); A.B. v. L.M., 289 N.J. Super. 125, 130 (App. Div. 1996); Corrente v. Corrente, 281 N.J. Super. 243, 247 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995). When confronted with an application to dissolve a final restraining order, the court should carefully consider the particular facts and circumstances of the case within the context of the intent of the Legislature to protect victims. In considering an application to dissolve a restraining order based upon an alleged reconciliation, we noted:

When confronted with a party's request to vacate a domestic violence order on the ground of reconciliation, the court should closely scrutinize the record to determine whether there is a likelihood that violent conduct will be repeated. The court should carefully consider the factors set forth in N.J.S.A. 2C:25-29a before removing the shield of protection afforded by the restraining order. See Torres v. Lancellotti, 257 N.J. Super. at 131, 607 A.2d 1375; cf. Carfagno v. Carfagno, 288 N.J. Super. at 436, 672 A.2d at 757 (setting out factors which the court should- 1 -consider when faced with an application to dissolve a domestic violence order for reasons other than reconciliation of the parties).

[A.B. v. L.M., 289 N.J. Super. at 131.]

We extend that reasoning to any application to dissolve a final restraining order. With protection of the victim the primary objective, the court must carefully scrutinize the record and carefully consider the totality of the circumstances before removing the protective shield.

The confusion and difficulty that can result when a transcript is not furnished is evident from the record of this case. In her opposition certification, plaintiff details several prior incidents of domestic violence she contends supports her continued fear of defendant. In response, the ...

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