August 27, 2007
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FV-13-1587-04A.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 21, 2007
Before Judges Lisa and Holston, Jr.
Defendant, R.F., appeals from the Family Part's September 28, 2006 order, denying his motion to dissolve a final restraining order (FRO) entered under the Prevention of Domestic Violence Act (DVA), N.J.S.A. 2C:25-17 to -33. We affirm.
Plaintiff L.V., a woman with whom defendant was involved in a short-term dating relationship, filed a criminal complaint against defendant charging him with stalking her on March 4, 2004, in violation of N.J.S.A. 2C:12-10. On March 5, 2004, plaintiff filed a complaint under the DVA, alleging harassment and stalking on March 4, 2004, for essentially the same acts as alleged in the criminal complaint. A temporary restraining order (TRO) was entered and a final hearing on plaintiff's application for an FRO was scheduled for March 14, 2004. The return of service indicates defendant was served with the complaint and TRO on March 5, 2004.
On March 16, 2004, a hearing on the FRO was held without defendant being present, and an FRO was entered by default. The judge found defendant engaged in a course of alarming conduct with the purpose to harass plaintiff culminating in his joining plaintiff's health club, the New York Sports Club (NYSC) in Freehold, following her around the gym, watching her as she worked out and on March 4, 2004 waiting for plaintiff in the parking lot of the NYSC, turning his car headlights on her and speeding his car toward her, opening the window of his car and yelling at her, startling, alarming and annoying her by his behavior. In the FRO entered by the judge, defendant was specifically banned from the NYSC in Freehold.
On May 27, 2004, defendant was informed that the Monmouth County Grand Jury found no indictment against him. Thereafter, the Monmouth County Prosecutor administratively dismissed plaintiff's criminal complaint alleging stalking against defendant. Defendant contends he did not receive a copy of the FRO entered against him on March 16, 2004, until September or October 2004.
On December 26, 2004, defendant went to NYSC and according to his certification, checked the parking lot to make sure plaintiff's car was not there. He proceeded to the locker room to change and weigh himself. When he came out of the locker room, the manager approached him and advised him that plaintiff was threatening to call the "cops." Defendant immediately went back into the locker room, changed and left the NYSC. Thereafter, plaintiff called the police and filed a complaint against defendant for violating the FRO. Defendant pled guilty to violating the FRO, according to defendant, because the law merely requires knowledge of the restraining order to be found guilty, not an intent to violate the FRO. Despite the wording of the FRO which states, "[d]efendant is barred from . . . NYSC, Daniels Way, Freehold" defendant contended he was "under the mistaken impression that as long as plaintiff was not at the gym, that [he] could use the gym and that this would not be a violation of the order."
In March 2005, defendant filed a motion to dissolve the March 16, 2004, FRO based on his misimpression that he was able to go the NYSC when plaintiff was not present and on the basis he is not a threat to plaintiff, as he is fifty-two years old, has multiple sclerosis (MS) and is on disability. The court denied defendant's motion to dissolve, by order dated May 3, 2005. The order stated that the court was satisfied defendant had been served with the FRO at the time of his admitted violation of the order.
Defendant brought a new motion to dissolve the FRO alleging "good cause" pursuant to N.J.S.A. 2C:25-29(d) which was filed on July 21, 2006. Defendant contends he was entitled to an order dissolving the FRO based on the factors establishing "good cause" set forth in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).
Defendant claims the FRO severely limits his liberty because he is "constantly fearful that [he] will go to a public place such as a restaurant and accidentally run into [plaintiff] and that she will again call the cops on [him] for no reason." In support of his motion defendant asserted that he had no other violations of the FRO since December 2004, when he went to the NYSC, has had no contact with plaintiff since March 4, 2004, was not a threat to plaintiff, and had never committed any violent acts toward her or intentionally tried to harass or frighten her. He submitted a certification from his former wife attesting to the absence of violent acts against his former wife during their twenty-one year marriage. Defendant asserts he has no problems with alcohol and drugs and has no psychological or anger management issues that would cause him to be a danger to any woman, including plaintiff.
On May 21, 2006, plaintiff advised defendant's attorney of her objection to dissolution of the FRO. Plaintiff asserted that the lifting of the order would give defendant incentive to harass her again, asserting that the existence of the order was the "beneficiary result" of their being no incidents or violations.
After hearing testimony and oral argument in support of and in opposition to the motion, the court denied defendant's motion. The court stated:
[W]hen [plaintiff] came into my courtroom on March 16, 2004, I was satisfied that she had met, by a preponderance of the evidence, the elements of harassment. I was satisfied that she required the issuance of a temporary restraining order to remain safe. I did consider everything again, . . . on May 3, 2005 when the issues were brought before the Court.
And here we are again, a year and some odd months later. And I can tell you that I am completely satisfied that [plaintiff] is fearful. . . .
If I look at the filing from last year, again, the Carfagno issues were listed. The defendant's position regarding the Carfagno elements were set forth. There is not a single new thing. Other than the fact that a year has passed and he hasn't been charged with a second violation.
There were two orders that were issued that told him not to go to the New York Sports Club and yet he went in December of 2004 in violation of the restraining order.
He's a college graduate. He receives two orders from the Court, both of which make it very clear he's barred from going to the New York Sports Club. . . . And in December of 2004 he went to the New York Sports Club in violation of the order. This is someone who doesn't get it. She needs to be left alone. She wants to be left alone.
And so I find, going through the Carfagno factors, that [plaintiff] does not consent to the restraining order being dissolved. Number two, [plaintiff] objectively fears [defendant]. And I find with good reason.
Number three, the parties have no relationship today I'm satisfied because of the existence of the final restraining order.
Number four, the defendant has been convicted of, or has pled guilty to a violation of the restraining order.
Number five, there is no evidence of alcohol or drug abuse, but that's of no consequence. Perhaps it's even more offensive that he did this sober.
Number six, whether the defendant has been involved in other acts with other persons. I acknowledge that there is a certification from [defendant's] first wife of twenty-one years who says he was never violent. But this wasn't an initially violent circumstance. This was a harassment, stalking type of situation that [plaintiff] cut off before it led to violence.
Number seven, whether the defendant has engaged in counseling. He says, I'm not a violent person. So I don't need to go to counseling. So he hasn't gone to counseling.
Number eight, the age and health of the defendant, the defendant is fifty-three years old. He says he suffers from MS. Again, that factor doesn't weigh into my decision here.
Number nine, whether the victim is acting in good faith when opposing the defendant's request, I find that she is acting in good faith. She wants to be left alone. She wants peace in her life. She wants peace for her daughter. She wants peace. Everyone deserves, as I've said, no less than that.
Number ten, whether another jurisdiction has a restraining order, you want to run his name right now. You did. There's no others, okay. There appear to be no other restraining order requests against Mr. Fasullo.
And number eleven, any other factors deemed relevant by the Court. Again, I've decided this last May. There is nothing new since then. I believe that [plaintiff] needs and wants the restraining order.
So therefore, I will deny the motion to dissolve the restraining order.
Carfagno squarely addresses the factors a court should consider when determining whether a defendant has shown "good cause" for the dissolution of an FRO under the DVA. Id. at 430. To accomplish the goal of protecting the victim, the court should consider:
(1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of the defendant; (9) whether the victim is acting in good faith when opposing the defendant's request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court. [Id. at 435.]
Carfagno further instructs that the factors need to be weighed qualitatively and not quantitatively to determine whether a defendant has met the required burden to show good cause to dissolve the order. Id. at 442; see also Stevenson v. Stevenson, 314 N.J. Super. 350 (Ch. Div. 1998).
"The scope of appellate review of a trial court's fact-finding function 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). Moreover, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. Our review of the record discloses there was adequate, substantial credible evidence in the record to support the court's findings.
Defendant contends the court erred in its analysis of the Carfagno factors, claiming the court considered plaintiff's subjective fear and instead should have focused on objective fear. Had it done so, defendant argues, the court would have concluded that the FRO against him was no longer reasonably required, particularly if the lack of objective fear were evaluated in light of the other Carfagno factors. Defendant claims his certification demonstrates he has met his burden of proof. Defendant thus asserts that he satisfied the statutory standard of "good cause" for dissolving the FRO. We disagree.
We are satisfied the court's determination that plaintiff feared defendant was based on the objective standard of a reasonable person and not on a personal standard. The court made this finding based on defendant's violation of the express terms of the FRO, which banned him unequivocally from the NYSC in Freehold. We are equally satisfied that with the exception of the court's application of factor five, which application we do not endorse, the court based on substantial credible evidence in the record properly applied the Carfagno factors in reaching its decision to deny defendant's motion.
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