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L.V. v. R.F.

August 27, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, FV-13-1587-04A.

Per curiam.



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 ...

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