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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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