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A.V. v. A.V.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 18, 2009

A.V., PLAINTIFF-RESPONDENT,
v.
A.V., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-245-06A.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued November 12, 2008

Before Judges Wefing, Parker and Yannotti.

Defendant A.V. appeals from two orders: one entered on November 14, 2007 denying his motion to dismiss a domestic violence final restraining order (FRO), and the other entered on December 21, 2007 directing him to pay $2,100 to plaintiff for counsel fees. We reverse both orders and remand the matter to the trial court for a full plenary hearing on defendant's motion to dismiss the FRO.

The parties were married in Seattle, Washington, on March 8, 2000. Two children were born during the marriage, L.V. in 2002 and C.V. in 2004. Plaintiff now acknowledges that C.V. is not defendant's biological child.

The domestic violence matter arose when defendant discovered plaintiff's extramarital affairs. Plaintiff alleged that on July 10, 2005, defendant pushed her against a wall and questioned her about them. On July 17, 2005, when defendant received a cell phone bill with charges for numerous text messages he believed were related to plaintiff's affairs, he allegedly grabbed her and threw her to the floor. On July 25, 2005, the parties got into a heated argument during which defendant took plaintiff's car keys, house keys and cell phone, telling her they belonged to him. Defendant then disconnected the house phone and internet access. Plaintiff alleged that defendant physically attacked her during the course of that argument. Defendant alleged that they engaged in a mutual struggle for possession of the cell phone.

On July 25, 2005, defendant filed a domestic violence complaint. On July 30, 2005, plaintiff filed a cross-complaint. On August 22, 2005, after a final hearing, the trial court entered an FRO in favor of plaintiff, and gave her possession of the marital home, which was owned by defendant's mother.

Thereafter, the parties proceeded with a divorce, during which plaintiff disclosed that C.V. was not defendant's child and contradicted other testimony she had given during the domestic violence hearing. For example, during the FRO hearing, plaintiff testified that although the parties had a joint checking account in Seattle, defendant limited her access to $200 per month. During the divorce proceedings, however, it became clear that plaintiff had unlimited access to the joint checking account, which included overdraft protection, and that she had access to credit and debit cards in her own name. Moreover, she acknowledged during the divorce proceedings that she applied for store credit cards using defendant's social security number.

After entry of the FRO, plaintiff retained custody of both children. In August 2006, however, custody of L.V. was transferred to defendant after the Division of Youth and Family Services (DYFS) removed the children from plaintiff's home. Because defendant was not C.V.'s biological father, the child was placed in foster care with a family friend.

Ultimately, the parties entered into a custody and visitation agreement under which defendant was designated the custodial parent of L.V. but the parties shared joint legal custody. The agreement provided that "[t]he parties shall continue to have all pick-ups and drop-offs at the Middletown Police Department until such time as the [FRO] . . . is no longer in existence."

On June 19, 2007, defendant moved to dismiss the FRO. The motion was heard on November 14, 2007. Defendant pointed out that he and plaintiff had been in communication regarding pickup and drop-off of their child and that there had been no problems between them since the FRO was entered two years earlier. Defendant noted that there had been no violations of the restraining order -- albeit plaintiff had filed a contempt complaint against him that was dismissed after a hearing. Since entry of the FRO, defendant did not stalk or harass plaintiff or her boyfriend, did not send her mail or packages and did not contact her friends in an effort to reach her indirectly. Moreover, defendant noted that plaintiff did not claim she was in fear of defendant or that there was any reason to continue the FRO.

Nevertheless, plaintiff argued that if the FRO were dismissed, the "cycle of violence [would] continue." Plaintiff is a Brazilian national and she further claimed -- without any evidential support whatsoever -- that defendant intended to jeopardize her immigration status and negatively affect her ability to regain custody of C.V. Plaintiff's previous efforts at applying for citizenship were hampered by her prior criminal convictions for shoplifting.

There were numerous disputed facts and the evidence before the trial court demonstrated that plaintiff engaged defendant in conversations during pick-up and drop-off, that both parents were attending school functions with L.V. and that the FRO only continued to cast a shadow over defendant "so that he doesn't want to respond to her when she talks to him." Ignoring the disputed facts, the trial court denied defendant's motion to dismiss the FRO, apparently because it believed that defendant's motive was to compromise plaintiff's immigration status.

In this appeal, defendant argues that the trial court (1) abused its discretion in denying his motion to dismiss the FRO without a plenary hearing; (2) failed to apply an objective test as to whether plaintiff fears defendant; (3) improperly denied defendant the right to cross-examine plaintiff; and (4) abused its discretion in awarding counsel fees to plaintiff.

A party moving for dissolution of an FRO bears the burden of establishing good cause to do so. N.J.S.A. 2C:25-29d; Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998). In considering an application to dissolve a domestic violence restraining order, the trial court should consider the following factors: (1) whether the complainant consents to the dissolution; (2) whether the complainant legitimately continues to fear the defendant; (3) the nature of the parties' present relationship; (4) whether there have been any violations of the restraining order; (5) whether the defendant has alcohol, drug abuse or violence issues; (6) whether the defendant has had counseling; and (7) whether there is a history of domestic violence and prior restraining orders. Sweeney v. Honachefsky, 313 N.J. Super. 443, 447 (App. Div. 1998) (citing Carfagno v. Carfagno, 288 N.J. Super. 424, 435 (Ch. Div. 1995)). In Sweeney, we noted that these factors should be considered in light of the defendant's conduct that gave rise to the initial finding of domestic violence. Ibid.

Here, there was no evidence or indication that defendant was involved with drugs or alcohol, he had not been ordered to participate in domestic violence counseling, no prior restraining orders were issued against him, and the circumstances under which the alleged domestic violence occurred -- defendant's discovery of plaintiff's affairs -- were unlikely to recur. Moreover, plaintiff's subsequent admission that C.V. was not defendant's child, along with her contradictory testimony in other proceedings, substantially undermine her credibility with respect to her allegations. Significantly, the parties themselves had successfully negotiated the custody and visitation schedule for L.V. and they apparently communicated amicably regarding L.V.'s visits with plaintiff.

Plaintiff's claim that defendant's motion to dismiss the FRO was intended to affect her immigration status was completely unsupported by the evidence. Plaintiff's own criminal convictions caused her difficulty in normalizing her status. Defendant maintained that his intent in dismissing the FRO was to allow healthy, amicable communication with respect to L.V. In short, the court's stated reason for denying defendant's motion is unfounded. The court failed to consider the inconsistencies in plaintiff's testimony between the FRO hearing, the DYFS hearing and the divorce proceedings.

The trial court further erred in failing to conduct a plenary hearing at which defendant could have cross-examined plaintiff on the inconsistencies in her testimony. As with any proceeding in which there are substantial disputed facts, the court is obligated to conduct a plenary hearing and to allow cross-examination of the parties in order to arrive at a credibility determination and make a finding of facts supported by the credible evidence. State v. Pyatt, 316 N.J. Super. 46, 50-51 (App. Div. 1998), certif. denied, 158 N.J. 72 (1999); Conforti v. Guliadis, 245 N.J. Super. 561, 565 (App. Div. 1991), aff'd on this point, 128 N.J. 319, 322-23 (1992).

During argument on the motion, when defense counsel pointed out that plaintiff failed to state in her certification that she was in fear of defendant, the court called upon plaintiff, told her she was under oath and asked her if she was afraid of defendant. Needless to say, plaintiff responded, "Yes." Defense counsel objected and asked for the opportunity to cross-examine plaintiff, stating, "Well, I think that it's kind of a loaded question considering the fact that I've argued from the beginning today that she hasn't ever said that she's afraid." The trial court overruled the objection, stating:

[S]he has a language barrier. She speaks primarily Portuguese. Typically we have a Portuguese interpreter here for her. I was not aware that this [case] was on today because I haven't been here since last Friday and I didn't realize it was on a non-motion day and I have a changing court staff that doesn't automatically know that on Valenzuela you have to make sure there's a Portuguese interpreter available.

Defense counsel continued to object and the court stated:

This is a motion and you asked to know if she was afraid. I asked her. She answered.

It doesn't suggest in Carfagno that I need to go any further than that. Okay.

Clearly, this procedure was not "okay." The trial court abused its discretion in denying defendant's request to cross- examine plaintiff. If plaintiff required an interpreter, the matter should have been adjourned until an interpreter was available so that the proceeding could continue in fairness to both parties. We agree with defendant that it was a "loaded question" and that the court improperly interposed itself to question plaintiff.

"Although great latitude is given to a trial court in the conduct of a trial, there are bounds within which the judge must stay." Persley v. N.J. Transit Bus Operations, 357 N.J. Super. 1, 9 (App. Div.), certif. denied, 177 N.J. 490 (2003) (citing Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 298 (App. Div. 1999)). It was improper for a court to rely upon plaintiff's response to its leading question without allowing cross-examination of the witness. See Luedtke v. Shobert, 342 N.J. Super. 202, 215-16 (App. Div. 2001). In our review of the record, we must determine whether "the actions of the trial judge deprived the defendant of a fair trial." Mercer, supra, 324 N.J. Super. at 299. "Trial judges clearly have a duty to assure that both parties obtain a fair trial." Hitchman v. Nagy, 382 N.J. Super. 433, 453 (App. Div.), certif. denied, 186 N.J. 600 (2006). Here, the trial court overreached in asking plaintiff whether she was afraid of defendant when plaintiff had not made that claim in her response to the motion. More importantly, the trial court's refusal to allow defendant the opportunity to cross-examine plaintiff with respect to her answer was reversible error. Mercer, supra, 324 N.J. Super. at 299.

Since we are reversing the November 14, 2007 order denying defendant's motion to dismiss the FRO and remanding the matter for a plenary hearing, we also reverse the counsel fee award. The court may consider an application for counsel fees by either party after the plenary hearing. In hearing a motion for fees, the court shall consider the factors set forth in Rule 5:3-5(c) and the requirements set forth in Rules 4:42-9(b) and (c).

The fee award in this case was improper because the court

(1) failed to make any findings regarding the reasonableness of plaintiff's counsel fees; (2) failed to consider the other factors articulated in the Rules; and (3) failed to note that plaintiff's counsel did not provide any evidence that a $300 charge for "anticipated services" was actually earned. Even if we had affirmed the trial court's refusal to dismiss the FRO, we would be unable to determine whether the award of counsel fees was appropriate because the trial court made no findings of fact and the certification of services was inadequate.

To summarize our ruling, the trial court's denial of defendant's motion to dismiss the FRO is reversed and the matter is remanded for a plenary hearing. The order entered on December 21, 2007 ordering defendant to pay $2,100 in counsel fees to plaintiff is reversed.

Reversed and remanded.

20090218

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