On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, FM-16-032962-93.
The opinion of the court was delivered by: Lihotz, J.T.C. (temporarily assigned)
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Parker and Lihotz.
Plaintiff, James Finamore, appeals the trial court's denial of his motion to attend the activities and events of the parties' son when defendant, Donna Aronson, is present because a final restraining order bars Finamore's contact with Aronson. Because the evidence does not support the trial court's findings, we reverse and remand for further proceedings.
The parties were married in 1989. Their son was born in July 1991. A final restraining order pursuant to the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35, was entered on October 6, 1992, then vacated at Aronson's request.
Aronson filed a second request for entry of a domestic violence restraining order on April 11, 1993. The temporary order included restraints prohibiting Finamore from having contact with Aronson, Aronson's son from a prior relationship, and the parties' son. Finamore was also barred from Aronson's home and place of employment. No visitation provisions were included.
A final hearing was scheduled for April 15, 1993.*fn1 On that date an order titled: "FINAL ORDER UNDER PREVENTION OF DOMESTIC VIOLENCE ACT" was entered. Actually, the order merely continued the temporary restraints of the April 11, 1993 order, and granted visitation between Finamore and the parties' son.*fn2 Orders entered on May 5, 1993 and May 26, 1993, generally continued the prior restraints. The parties later agreed, however, that the May 26, 1993 order constituted a final restraining order under the Act.
A dual final judgment of divorce, filed December 27, 1995, incorporated the parties' Separation and Property Settlement Agreement (Agreement), which referenced the continuation of the restraining order and also required the parties to directly communicate, confer, consult and attend counseling to address joint legal custody and parenting time issues.
Conflict continued. An order entered on January 28, 1998, vacated the custody provisions of the Agreement and granted Aronson's request for sole legal and residential custody. Finamore's November 1999 motion to vacate the final restraints, based on his contention that no evidentiary hearing was held, was denied. On appeal,*fn3 we sustained the trial court's finding that Finamore waived a final evidentiary hearing, reaffirming the determination that the May 26, 1993 order was a final restraining order. We remanded for a Carfagno*fn4 hearing to determine whether the restraints should be modified or vacated in light of "the recent history of the parties" and to "clarify the nature of any continuing restraints imposed upon" Finamore.
After a plenary hearing, the trial court ordered the continuation of all prior restraints and entered an amended final restraining order on January 28, 2002, which terminated all provisions of the Agreement requiring the parties to engage in direct communication. The amended final restraining order allowed only "written communication regarding parenting time [and] telephone contact limited to emergent matters relating to [the] health, welfare and safety of the child." Finamore was barred from Aronson's place of employment and home except to allow curbside drop-off and pick-up during parenting time. Visitation and child support were to continue as addressed in the dissolution matter.
Finamore's subsequent request to attend the child's activities was limitedly granted by order dated July 19, 2002, which permitted his attendance "only when [Aronson] is not present." The factual basis for that conclusion was not provided in this record.
On April 30, 2004, an order granting Finamore's request to attend the child's bar mitzvah but denying the additional request to attend school ceremonies and ...