On appeal from the Superior Court of New Jersey, Law Division, Passaic County, FV-16-5829-93.
Before Judges Pressler, Kestin and Ciancia.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Following a bench trial, defendant James A. Finamore was found guilty of the disorderly persons offense of knowingly violating a domestic violence restraining order. N.J.S.A. 2C:29-9b. He was sentenced to 364 days in the county jail, sentence suspended with two years probation. Psychotherapy and domestic violence counseling were ordered and appropriate fees and penalties were imposed.
On appeal, defendant contends the State failed to prove guilt beyond a reasonable doubt and further, that a 364-day jail sentence for a disorderly persons offense is illegal. The State concedes the illegality of the sentence but contends the conviction was properly entered. We are satisfied that on the record presented defendant's conviction must be reversed. The charge as brought was defective. The scope of any applicable restraining order was unclear, bordering on indecipherable, and the defendant's actions that prompted the contempt charge could not, as a matter of law, be found to constitute a knowing violation of an existing domestic violence restraining order.
The past relationship of defendant with his now former wife, Donna Aronson, is relevant to our determination.*fn1 The parties were married in 1989 and their only child, a son, was born in 1991. A dual judgment of divorce was entered in December 1995. On October 6, 1992, Aronson was granted a final restraining order against defendant under docket number FV-16-2102-93 which, among other things, prohibited defendant from having "any contact with the plaintiff or harassing plaintiff or plaintiff's relatives in any way." At Aronson's request, that order was vacated in late November 1992. On September 9, 1999, a contempt complaint was filed against defendant alleging he had called Aronson "on the telephone four times on 9/9/99 in violation of FV-16-2102-93 issued 10/6/92. . . . " It is that vacated complaint which ostensibly formed the basis of defendant's present prosecution and conviction. Between the initial restraining order of October 6, 1992, and the filing of the criminal complaint, at least six other restraining orders were issued against defendant by five different judges. Only a municipal court temporary restraining order (TRO), dated April 11, 1993, and a Superior Court TRO, issued May 5, 1993, specifically prohibited defendant from having contact with Aronson and their son. A "final order" of April 15, 1993 did not prohibit contact with Aronson on its face, but it did say, "temp order to continue." As to visitation, the order is illegible in part, but it appears that visitation between defendant and his child was permitted. The transcript from the abbreviated hearing that preceded entry of the order makes clear that defendant was permitted supervised visitation with his son. Interestingly, that transcript also indicates the parties were willing to communicate with each other concerning defendant's employment prospects by leaving messages on answering machines or with third persons. A TRO issued on May 12, 1993 also specifically permitted visitation, while at the same time continuing the "TRO in the interim." On May 26, 1993, a final restraining order was entered that did not specifically prohibit contact with defendant's wife or their child but did specifically allow visitation, again, assumably with the child. That order also states, "order continued by consent" without further elaboration. We note that all of the orders subsequent to the April 11, 1993 order were continuances of the original order and were not entered as a result of new charges alleged, much less proven. The initial complaint of April 11, 1993 stated that defendant shouted at Aronson and threatened her with his "physical size." The record does not provide any detail concerning that allegation and there was apparently no evidential hearing to establish the facts. At the abbreviated hearing on April 15, 1993, defendant denied the domestic violence charges made against him by Aronson on April 11, 1993.
On October 19, 1993, defendant was tried for having contact with Aronson that allegedly constituted contempt of the May 26, 1993 restraining order. Defendant was found not guilty of that charge, but the parties apparently agreed that the order of May 26, 1993 was a final restraining order that was still in effect. A "judgment of acquittal and order for visitation" was entered on November 9, 1993, establishing defendant's visitation schedule with his son and stating that "all other provisions of the Court's prior Domestic Violence Order dated May 26, 1993 are continued."
Not surprisingly, the parties' marriage was headed for divorce. On December 13, 1995, while represented by counsel, the parties signed a detailed separation and property settlement agreement that was incorporated into a judgment of divorce entered on December 27, 1995. In relevant part that agreement provided:
The parties agree that their future relations shall be governed and fully prescribed by the terms of this Agreement; . . .
Both parties accept this Agreement as fair, just and reasonable to their respective individual best interests; . . .
The parties agree that on all major matters relating to the health, welfare and education of the child, they will confer with each other with a view to adopt and follow those policies which are in the best interests of the child.
2. The Husband shall have reasonable and liberal rights of visitation with . . . [the child] in accordance ...