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Stilton v. Stilton

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 10, 2007

DEBRA R. LUCANTE STILTON, PLAINTIFF-RESPONDENT,
v.
DONALD ALLEN STILTON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Ocean County, Docket No. FM-15-977-03 and FV-15-1569-03.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 5, 2007

Before Judges Payne and Lihotz.

These two appeals filed by defendant Donald Stilton were consolidated by our order dated January 20, 2007. Plaintiff Debra Lucante Stilton and defendant were divorced on June 15, 2005. Although the parties are the same in each Family Part matter, the cases are distinctly different, requiring separate discussion of the facts and issues.

A.

The first case concerns the parties' matrimonial matter. Defendant appeals from Judge Franklin's October 3, 2006 order, in which plaintiff was awarded $1,000 and released from further obligation regarding defendant's Naval memorabilia and M&M collection (collectively referred to as "the collections"). The final judgment of divorce (FJOD), which contained the parties negotiated terms of settlement on all collateral issues, awarded to defendant either the collections themselves or the proceeds of an insurance claim after the disappearance of the collections. It is clear from the pleadings that plaintiff believed defendant removed the collections, as the FJOD states: "If the insurance claim is denied because of a finding that the defendant was responsible for the break-in, then plaintiff shall owe defendant nothing on account of these issues." Defendant had been charged with theft of the collections, but the charges were dismissed for lack of evidence.

Although defendant filed a timely notice of appeal and presents Judge Franklin's October 3, 2006 order, he offers no argument with respect to this matter in his merits brief. We consider only a party's legal arguments raised in his or her brief under appropriate point headings. R. 2:6-2(a)(5); see also Almog v. Israel Travel Advisory Service, Inc., 298 N.J. Super. 145, 155 (App. Div. 1997). Because the issue has not been briefed it is deemed abandoned. See Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001); see also Carter v. Carter, 318 N.J. Super. 34, 42 n. 8 (App. Div. 1999).

B.

The second case presents an appeal from the denial of defendant's request to vacate a final restraining order (FRO) issued on January 14, 2003, pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to 35. In that hearing, the trial court heard each party's testimony in support of the respective complaints alleging domestic violence.

In support of her claims, plaintiff testified that defendant repeatedly called her at work, making threatening comments. Plaintiff, while alone in her office on a Sunday, had received between ten and twenty telephone calls from defendant. When at home, plaintiff asserted defendant was frequently angry and drank heavily. She expressed fear, as she believed defendant's anger was escalating. Plaintiff recited the threats defendant had made in telephone calls or in person, which include:

I haven't snapped yet. Oh you'll know when I snap . . . . . . . .

If you take one more thing out of the house, you're going to be sorry. I'll show you what I can do to you. You don't want to mess with me. You don't want to play with me. . . . .

Oh you haven't seen me snap yet. You don't want to be my enemy. You don't know what I can do to you.

Describing past acts of domestic violence, plaintiff explained that defendant attempted to prevent her from leaving the house by breaking the key off in the ignition of the car, once pulled the shower curtain off the rod while she was bathing, and once smashed furniture with an ax. She described an incident when she arrived home after work and noticed a pervasive smell of gasoline. When questioning defendant about the odor, he stated, "I don't smell anything." The exchange continued, as follows:

I said, "Donald, there's gasoline going through the whole house. I smell it." And he had a smirk on his face: "I don't smell anything." And I said, "I smell it." He said, "Well, maybe we better call the oil company. Something might have happened to your oil burner." . . . .

When he saw my face go white, he got up, and he said, "Oh, I'll bet I know what it is." And . . . he got his gym bag that he said was in the back of his truck. It must have had a gasoline smell on it. But it was, I believe, reeking with gasoline. It was through the whole house. And he put it outside, and the smell went away.

Defendant, in turn, claimed that plaintiff grabbed him by his ears and head, and otherwise poked and shoved him. Plaintiff, according to defendant, antagonized him by removing property from their home, taking it to her relatives' houses, and prevented him from entering their home to retrieve property related to his landscaping business. Additionally, defendant's sixteen year-old son, who lived with the parties during their marriage, testified as to arguments he witnessed between the parties, and once saw plaintiff throw a "glass mug" at defendant.

Judge Grasso granted the requests of each party, and entered mutual restraints, which currently remain in effect.

Defendant applied to dissolve the FRO, asserting changes that have occurred since the FRO's entry, which satisfy the statutory requirement of "good cause shown." N.J.S.A. 2C:25-29d. In his certification filed with the Family Part, defendant explained he was remarried and has a new child; that he had "experienced personal growth"; and that he had "no reason or desire to contact or otherwise harass his former wife." Defendant conceded that he had once violated the restraining order. Since then, there have been no additional violations.

Defendant is currently incarcerated as a result of an unrelated matter.

Plaintiff opposed defendant's application. In her certification, she asserted her continuing fear of defendant and stated that she believed the restraining order was her only real protection against him, particularly once he was released from prison.

On October 27, 2006, Judge Ford denied defendant's motion to dismiss the FRO, determining that plaintiff continued to fear for her safety and, further, that defendant had not presented a reason compelling enough to warrant a dismissal of the order. See Carfagno v. Carfagno, 288 N.J. Super. 424, 434-35 (App. Div. 1995).

On appeal, defendant presents the following arguments:

POINT I

JUDGE FORD[']S DECISION MUST BE REVERSED AS HER ORDER VIOLATES THE LEGISLATIVE INTENT ALLOWING PARTIES TO DISSOLVE RESTRAINING ORDERS FOR GOOD CAUSE SHOWN PURSUANT TO N.J.S.A. 2C:25-29d.

POINT II

JUDGE[']S FAILURE TO MAKE A FINDING OF FACTS AND CONCLUSIONS OF LAW REQUIRED BY R. 1:7-4(b) REQUIRES REMAND OF THE MATTER AND A REVERSAL OF THE ORDER IN CONTROVERSY.

Defendant argues the motion judge ignored the legislative intent of N.J.S.A. 2C:25-29d, which permits restraining orders to be dissolved upon a showing of good cause. Essentially, he restates the reasons he argued before the trial court.

Defendant cites M.V. v. J.R.G., 312 N.J. Super. 597, 603 (Ch. Div. 1997), incorrectly suggesting that the passage of one year following the entry of the FRO supports his request for its dissolution. In M.V., the trial court addressed the timing of a defendant's application to dissolve a FRO. Id. at 601-02. The court determined that, absent compelling circumstances suggesting otherwise, at least a one-year period must pass from the initial entry of the order before consideration of a request to vacate that order, as "it is appropriate that an order be in effect for a reasonable time before the criteria cited as reasons for dissolution should be examined to determine their permanency and viability." Id. at 602. If that prerequisite is met, then the application is subject to review on the basis of the eleven factors enumerated in Carfagno. Id. at 603-04.

We have analyzed the record in the light of the written arguments advanced by defendant and prevailing standards of law. We conclude that the findings of fact and conclusions of law made by Judge Ford are binding on appeal because they are "supported by adequate, substantial and credible evidence" in the record, Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Defendant's claim, that "the [j]udge gave no specific written or oral opinion which supported the legal basis or conclusion" to deny his motion, is baseless. Although defendant failed to supply the transcript of the October 27, 2006 hearing, we obtained a copy of the record. Judge Ford satisfactorily reviewed the facts and grounded her decision on applicable Carfagno factors. The scope of our review is limited. "The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). We cannot conclude that the motion judge's determinations were so wholly unsupportable as to result in a denial of justice. See Rova Farms, supra, 65 N.J. at 483-84.

Affirmed.

20070810

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