On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-002117-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 10, 2008
Before Judges C.L. Miniman and King.
Defendant Peter DeRosa appeals from the April 1, 2008, denial of his application to vacate a May 29, 1998, final restraining order (FRO) barring him from having any contact or communication with plaintiff Barbara DeRosa, his former wife who is now known as Barbara Marvin, her parents, and prohibiting him from possessing any firearms. We affirm substantially for the reasons expressed by Judge Robert J. Mega.
Defendant asserted in his motion that more than nine years had elapsed since entry of the FRO without incident or violation and that he "would like to get his life normalized and put the past behind him." Plaintiff opposed the motion, stating that she had been abused during the marriage and after their separation the abuse escalated. She alleged that during the marriage, defendant threatened her life and the lives of her family members and broke into her home, stealing 300 rounds of ammunition from one of her tenants. She described incidents that occurred after entry of the FRO and asserted that once defendant was advised he was violating the FRO he began to abuse and neglect their son.
Plaintiff certified that defendant's attorney wrote to her in the Spring of 2000, stating that defendant no longer wished to see his son. She also certified that thereafter defendant had gone to the office of her husband, Douglas Marvin, on several occasions and once requested that Douglas speak with plaintiff about dissolving the FRO so that defendant could purchase a rifle. In response to that request, plaintiff telephoned defendant, who told her that he wanted to purchase guns and teach his children to shoot. When she said that she would have to think about it, defendant started yelling at her and stated that he knew where she lived, drove, and worked and she had to give him an answer by Thanksgiving. She then hung up the phone. She certified that she still feared for her and her son's life and wanted the restraining order to remain in effect.
At the hearing, defendant denied that he wanted to purchase guns, stating that he only wanted to borrow guns from his friends, teach his children to shoot them, and take them hunting on his uncle's farm in Ohio. However, he admitted that he had worked at a summer-camp rifle range where he showed one son how to use a shotgun. Defendant disputed the historical statements made by plaintiff, denying that he ever broke into her house. The judge then reviewed the factors outlined in Carfagno v. Carfagno, 288 N.J. Super. 424, 433-34 (Ch. Div. 1995),*fn1 which suggests that judges consider the following factors in deciding whether to vacate an FRO: (1) the consent of the victim to lift the order; (2) the victim's fear of the defendant; (3) the nature of the relationship between the parties at the time of the hearing; (4) any contempt convictions; (5) any alcohol or drug involvement; (6) any other violent acts; (7) whether defendant has engaged in domestic violence counseling; (8) the age and health of defendant; (9) the good faith of the victim; (10) any orders entered in any other jurisdictions; and (11) other factors deemed relevant by the judge.
As to the first two factors, plaintiff stated that she would not consent to vacating the FRO because she was terrified even after eleven years. She stated that in 2005 defendant was going to her husband's office, screaming at her, and making implied threats. Defendant responded that he has been going past plaintiff's house for five or six years because of his work as a landscaper and denied that he would harm her, pointing out that he had a wife and four children, had been a scout master for three years, and had run a summer camp for two years.
As to the third factor, defendant denied that he had any relationship with plaintiff at the time of the hearing. Conversely, plaintiff asserted that there was occasional contact and that she still was receiving feedback that defendant hates her and her family and that he is as angry as he was ten years ago, which scared her. Defendant admitted that he had no relationship with his and plaintiff's son.
Both parties agreed with respect to the fourth factor that defendant had never been convicted of violating the FRO and that the only contact between them had been two visits to her husband's office and the one telephone call. They also agreed with respect to the fifth factor that there was no evidence of defendant having any drug or alcohol involvement. With regard to the sixth factor, defendant claimed that he had no prior convictions, but plaintiff disputed this claim, pointing out that defendant broke his boss's legs when his boss yelled at him. She stated that defendant had a very volatile temper when something did not go the way he wanted. Defendant, however, claimed that he and his boss were engaged in "horseplay" when his boss's leg was broken in two places and claimed that he still worked for the man on a part-time basis.
As to the seventh factor, defendant admitted that he had not engaged in any type of counseling at any point, but then he asserted that he had participated in court-ordered anger management and batterer's intervention following entry of the FRO. However, the judge noted that the psychological report in the court file from August of 2000, which was two years after the FRO was entered, found that defendant was "experiencing high levels of anxiety and presents with hypervigilance and suspiciousness that are of pathological levels and may interfere significantly with functioning" and suggested therapeutic interventions.
As to factor eight, defendant was forty-one years old and had orthopedic problems with his knees, back, elbows, bicep muscle, rotator cuff, and also some bone spurs. As to the ninth factor, plaintiff explained that a lot of effort went into the restraining order and that she honestly did not feel safe; that his sole purpose in vacating the restraining order was to purchase a gun and go shooting; and that she felt that was a violation of her safety. Plaintiff expressed ...