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A.V. v. A.V.

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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