October 21, 2009
O.N. N/K/A O.B., PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Mercer County, Docket No. FV-11-1092-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 23, 2009
Before Judges Collester and Sabatino.
Defendant R.N. appeals from the Chancery Division, Family Part order of July 18, 2008, denying his motion to dissolve the February 14, 2002 final restraining order (FRO) entered against him on a domestic violence (DV) complaint filed by his former wife, plaintiff O.N., pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to 2C:25-35.
The DV complaint charged harassment and was filed after initiation of divorce proceedings. It was the plaintiff's fifth DV complaint against defendant, the others having been dismissed. Following several trial days, the Family Part judge granted the FRO after resolving credibility issues in favor of plaintiff. The judge found defendant: (1) threatened to "com[e] after" plaintiff and her attorney; (2) had sent letters to plaintiff's employer; (3) had demanded tax documentation from the shelter that counseled plaintiff; (4) and had acted belligerently towards a friend of plaintiff who was present when defendant picked up the children at plaintiff's home.
The judge held that, under the totality of the circumstances, defendant had engaged in "a pattern of behavior to control and to get the upper hand" over plaintiff with the purpose of harassing her and entered the FRO because "the long history in this case" suggested "the harassment [would not] stop without a restraining order." Defendant was restrained from any contact with plaintiff, except on matters concerning the children, and even then all communications were required to be in writing. Defendant did not seek an appeal of the FRO.
The divorce judgment was later entered on June 3, 2002. A consent order entered on the same date provided for joint custody of the two children. Plaintiff was designated as custodial parent, and defendant was to have extensive parenting time. Subsequently, defendant has seen his son on a regular basis, but because he is estranged from his daughter, he has had no contact with her for several years. She is now approaching college age and defendant is entitled by the consent order to "participate in all important decisions relating to the children including . . . choice of schools."
Since the divorce, the relationship between the parties remained litigious. Defendant made several motions and filed municipal court complaints against plaintiff in which he alleged plaintiff interfered with his parenting time. A guardian ad litem was appointed for the children in an attempt to mediate these problems.
Plaintiff signed three DV contempt complaints against defendant. The first, which was on April 30, 2002, charged that defendant harassed her by inserting a newspaper article about counsel fees in matrimonial actions in an envelope containing his support check. Defendant was arrested and forced to make bail on the charge, but was adjudged not guilty. About a month later, June 5, 2002, plaintiff filed another contempt complaint, this time alleging that defendant threatened her in the courthouse hallway two days earlier prior to their uncontested divorce. The State declined to prosecute. The third, filed on December 4, 2002, asserted that defendant made harassing phone calls and sent threatening faxes to plaintiff. This complaint was dismissed after plaintiff refused to testify.
Defendant then filed a complaint against plaintiff in the Law Division for malicious prosecution. This suit was dismissed after the parties agreed to modify the FRO to include the more expansive parenting time provided for defendant in the divorce judgment. However, dismissal was without prejudice allowing for defendant to refile if plaintiff filed another DV contempt complaint against him. Unfortunately, the settlement did not end the post-judgment litigation. Defendant filed additional motions alleging plaintiff continued to violate his parenting time rights. The last motion pertaining to this allegation was filed in August of 2006.
On July 18, 2008, the return date of defendant's motion to dissolve the FRO, both parties appeared without counsel. The judge placed them under oath and conducted the examination. There was no cross-examination. Defendant argued that the FRO was no longer necessary and accused plaintiff of using the restraining order to hinder his parenting rights. He said he was afraid he would be arrested if plaintiff falsely charged again that he violated the restraints. He also urged dissolution of the FRO on grounds that it inhibited his participation in the selection of a college for his daughter.
In opposition to the motion, plaintiff argued that circumstances had not changed, and that it was sufficient and proper for the parties to continue communicating about the children by fax. She said she feared her husband would harass and dominate her if the restraints were dissolved.
I'm just afraid that if anything happens to the final restraining order, that there will be other avenues that he'll pursue to contact me. He . . . had written several letters to my employer, actually copying the CEO and head of legal counsel. Anybody that's ever tried to help me ends up in court, whether it's Women's Space. The children's therapist . . . a motion was brought against them. He went after my attorney, after a private investigator. And so I am very fearful of any avenue that he might be able to continue to relentlessly come after me.
Defendant acknowledged that he sought confirmation of the tax exempt status of Women's Space and that he was successful in replacing the children's former therapist who was associated with Women's Space. He claimed that Women's Space was biased against him, and that plaintiff was a part-time employee or counselor for that organization. He also said he took action against plaintiff's private investigator because he interfered with his parenting on one occasion. He further added that he filed an ethics complaint against plaintiff's prior attorney for improperly depositing a check payable to the parties in his regular account. He noted that the attorney was found guilty of misconduct by the District Ethics Committee.
Defendant asserted that the legal actions he pursued against plaintiff were the result of her failure to comply with parenting time orders. He argued her claimed fear of him was not objectively reasonable, saying "what she brings up is fear of her lies and manipulation of the court system." He maintained that after six years, there was no reason to continue the FRO.
The trial judge held that defendant had not demonstrated good cause to dissolve the FRO as required by N.J.S.A. 2C:25-29d. He considered the following factors set forth in Carfagno v. Carfagno, 288 N.J. Super. 424, 435 (Ch. Div. 1995), and approved by us in Kanaszka v. Kunen, 313 N.J. Super. 600, 605 (App. Div. 1998):
(1) whether the victim consented to lift the restraining order; (2) whether the victim fears the defendant; (3) the nature of the relationship between the parties today; (4) the number of times that the defendant has been convicted of contempt for violating the order; (5) whether the defendant has a continuing involvement with drug or alcohol abuse; (6) whether the defendant has been involved in other violent acts with other persons; (7) whether the defendant has engaged in counseling; (8) the age and health of defendant; (9) whether the victim is acting in good faith when opposing the defendant's request; (10) whether another jurisdiction has entered a restraining order protecting the victim from the defendant; and (11) other factors deemed relevant by the court.
The trial judge first noted that plaintiff opposed dissolution of the FRO. He further found that she had an objective fear that defendant would abuse the legal process by filing specious or malicious actions against her.
Carfagno makes clear that the court must consider objective[,] rather than subjective fear. In her brief testimony this morning[,] in response to the question of the Court, plaintiff has testified that the primary basis of her fear exists in the history of litigation that defendant has subjected her and related parties to. Her Exhibit C outlines a two-page, single-spaced history of litigation, including threats to sue Women's Space, including an ethics complaint filed against the attorney that represented her in the divorce matter, and numerous motions, as well as municipal court complaints and the lawsuit that defendant filed against her.
Having heard the testimony of both parties, the Court believes that plaintiff continues to have an objective fear of the defendant, that there is custody litigation that has been brought in the past in other counties, and defendant, in his testimony, has indicated that he contemplates further court proceedings being filed.
However, in determining that plaintiff had a continuous and objective fear of the defendant, the court failed to make a finding that defendant's motions and other legal actions against plaintiff were unjustified or that plaintiff abused the legal process by filing prior contempt complaints which were subsequently dismissed.
The court further found in favor of plaintiff on the third Carfagno factor which relates to the present hostile relationship between the parties. The judge declared that although there was need for the parties to communicate as to the college selection process, it was sufficient for them to communicate by fax because "it would be unwise to lift the restraining order to permit a situation that would allow defendant to again attempt to exercise control over the victim." No finding was made on defendant's contention that plaintiff was exercising improper control over his relationship with his children through use of the restraining order. Moreover, in considering the ninth Carfagno factor, i.e., the good faith of the victim, the judge stated he did not believe that plaintiff was acting in bad faith in opposing the vacation of the FRO.
In so holding, the judge implicitly determined the testimony of plaintiff was credible and that defendant's testimony was unpersuasive.
We give deference to a trial court in evaluating the veracity of witnesses, Pascale v. Pascale, 113 N.J. 20, 33 (1988), and we recognize that family court judges possess a "special expertise in the field of domestic relations." Cesare v. Cesare, 154 N.J. 394, 412 (1998). Nonetheless, we hold in this case that the conflicting assertions of each party on material issues triggered the need for a plenary hearing to make the required credibility determinations. Palmieri v. Palmieri, 388 N.J. Super. 562, 564 (App. Div. 2006); Shaw v. Shaw, 138 N.J. Super. 436, 440 (App. Div. 1976). Since there was no cross-examination, the proceeding did not constitute a true plenary hearing.
We emphasize that not every claim of a factual dispute requires a plenary hearing. Harrington v. Harrington, 281 N.J. Super. 39, 47 (App. Div.), certif. denied, 142 N.J. 455 (1995); See also Adler v. Adler, 229 N.J. Super. 496, 500 (App. Div. 1988). Family Part judges hearing domestic violence matters are overburdened, and we do not intend to saddle them with unnecessary trial-type hearings. However, cross-examination is the indispensable hallmark of a meaningful plenary hearing. In cases such as this, in which literally all central factual issues were in dispute, a plenary hearing inclusive of cross-examination is mandatory.
Accordingly, the trial court's denial of defendant's motion to dismiss the FRO is reversed, and the matter is remanded for a plenary hearing. Since credibility findings were made by the trial judge, we remand the matter to the presiding judge for assignment of a different Family Part judge.
Reversed and remanded.
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