January 27, 2009
BARBARA DEROSA (NOW KNOWN AS BARBARA MARVIN), PLAINTIFF-RESPONDENT,
PETER DEROSA, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 concern about defendant being able to possess guns when they lived nine miles apart and he worked on her street for neighbors.
In deciding the issue before him, Judge Mega found (1) that plaintiff did not consent to vacating the FRO; (2) that plaintiff was afraid of defendant and was opposing his application in good faith; (3) the parties had no relationship; (4) defendant had not been convicted of contempt in connection with the FRO; (5) defendant had no alcohol or drug involvement; (6) the only other violent acts were the "horseplay" and some sexually hostile statements at the firehouse where defendant volunteered for which he was brought up on charges; (7) the defendant engaged in domestic violence counseling as ordered by the court; (8) defendant was forty-one and had some orthopedic problems; (9) the plaintiff was acting in the good faith in opposing the application; (10) there were no restraining orders entered in any other jurisdictions; and (11) defendant had known where plaintiff lived for five years without incident, was a scout master, ran a summer camp, was active in the community, and cared for three of his current wife's children and one of their own, indicating that defendant was "an all around good community, family person."
The judge ascribed heavy weight to the plaintiff's lack of consent and her fear of defendant, recognizing that the purpose of N.J.S.A. 2C:25-29 is to protect victims of domestic violence. He also gave heavy weight to her good faith:
[T]he victim, as I set and listen to her testimony, listen to her words and watch her in court here today, legitimately appears to this [c]court to be moving in good faith to oppose the lifting of this restraining order. She's, obviously, still in fear of him and, obviously, vehemently opposes the request to have this lifted.
The judge concluded that the other factors favoring defendant did not demonstrate any substantial change from the factors that led to issuance of the FRO and, in particular, found that resonating throughout this testimony is clearly an obsession that he needs it lifted to buy guns and be able to hunt and shoot and teach his kids how to shoot. That, to me, is not a reason, even if a person is a good person subsequently, after they have a restraining order against them, to alleviate the protections or take away the protections that a victim had obtained after being battered or abused and subjected to what the State classifies as a means to put protections in place and take those protections away, subsequently, without proper justification. And I don't see, or find, the proper justification has been presented to this [c]court, in this case, for a valid basis to lift this retraining order.
The judge thus determined that defendant failed to convince him under the Carfagno factors that good cause existed to vacate the FRO. This appeal followed.
Defendant argues that plaintiff's lack of consent to vacating the FRO should not determine the application; her fear is subjective only, but the court should focus on whether there is an objective basis for a reasonable victim to fear him under the circumstances, which he contends does not exist because he has never violated the FRO; he can no longer control or dominate plaintiff because they are now divorced; that the alleged other incidents of violence occurred before issuance of the FRO and he is now a solid member of the community in good standing and has received an award for his work with the Boy Scouts; he attended the court-ordered domestic violence counseling; that plaintiff only sought the FRO so that she could have complete control over their son; no other restraining orders had been entered in any other jurisdiction; and the restraining order should be lifted to permit him to have a relationship with his son and to attend sporting and school events in which he is involved. He asserts that a consideration of these factors mandates a vacation of the FRO.
Appellate review of the trial court's fact-finding function is circumscribed so that findings by the trial court are binding on appeal if supported by adequate, substantial, and credible evidence. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998); see also Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). Trial courts that "hear the case and see the witnesses . . . are in a better position to evaluate the credibility and weight to be afforded testimonial evidence." N.J. Div. of Youth & Family Servs. v. I.Y.A., 400 N.J. Super. 77, 89 (App. Div. 2008) (citing In re Guardianship of D.M.H., 161 N.J. 365, 382 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988)). "Where the issue to be decided is an 'alleged error in the trial judge's evaluation of the underlying facts and the implications to be drawn therefrom,' we expand the scope of review." N.J. Div. of Youth & Family Servs. v. G.L., 191 N.J. 596, 605 (2007) (citation omitted). However, even in this latter instance, the reviewing court will "nonetheless accord deference to the trial court's findings unless they 'went so wide of the mark that a mistake must have been made.'" MacKinnon v. MacKinnon, 191 N.J. 240, 254 (2007) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 279 (2007)).
The Supreme Court has observed that matrimonial courts possess special expertise and experience in the field of domestic relations. Cesare, supra, 154 N.J. at 412. "Because of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court fact[-]finding." Id. at 413. While we remain cognizant that we owe no special deference to the trial judge's conclusions of law, Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995), we will not "second guess [a Family Part judge's factual] findings and the exercise of their sound discretion." Hand v. Hand, 391 N.J. Super. 102, 111 (App. Div. 2007).
When the Act was adopted, the Legislature declared that "domestic violence is a serious crime against society" because "there are thousands of persons . . . who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants." N.J.S.A. 2C:25-18. Thus, "the focus of the Legislature was regular serious abuse between spouses. That this is so is underscored by the references to torture, battery, beatings, and killing in the findings." Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995) (emphasis added); see also Corrente v. Corrente, 281 N.J. Super. 243, 247 (App. Div. 1995). The Legislature intended the Act "to assure the victims of domestic violence the maximum protection from abuse the law can provide." Peranio, supra, 280 N.J. Super. at 53 (quoting N.J.S.A. 2C:25-18).
After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by defendant are without sufficient merit to warrant discussion in this opinion, Rule 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in his oral opinion delivered on April 1, 2008. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms Resort, Inc., supra, 65 N.J. at 483-84. We will not disturb the exercise of the judge's discretion in according weight to the Carfagno factors, which were supported by substantial evidence in the record. Hand, supra, 391 N.J. Super. at 111.
In addition, we note that there was an objective basis for plaintiff's fear that went beyond defendant's conduct leading to the issuance of the FRO. Defendant admitted that he attempted to communicate with plaintiff in 2005 by speaking to her husband on two occasions, although the FRO prohibited him from any form of communication with her. He did not dispute plaintiff's testimony respecting his temper when things did not go his way. He did not dispute the 2000 report of the psychologist that he needed therapeutic intervention to address his "high levels of anxiety[,] . . . hypervigilance and suspiciousness that are of pathological levels and may interfere significantly with functioning" and admitted that he had no such therapeutic intervention. Although the judge may not have specifically pointed to an objective basis for plaintiff's fear, he found that it was credible and the evidence establishes that there was an objective basis for it. We also note that the FRO is not an impediment to defendant having a relationship with his son as it only denied visitation pending receipt of the ordered risk assessment. Indeed, defendant thereafter had visitation with his son until May 17, 2000, when defendant's attorney advised plaintiff that defendant would rather not see his child any more.