November 20, 2009
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1022-04-B.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 16, 2009
Before Judges Payne, C.L. Miniman and Waugh.
Defendant D.R.G. appeals from the denial on May 9, 2008, of his application to vacate a final restraining order (FRO) entered against him on January 2, 2004, at the behest of plaintiff D.M.N. pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm.
The parties were married on June 3, 1989. Three children were born to the marriage: a daughter in 1990, a son in 1991, and another daughter in 1995. On November 7, 2002, a final dual judgment of divorce was entered dissolving their marriage and incorporating their property settlement agreement (PSA).
On January 2, 2004, an FRO was entered against defendant because defendant purposefully made harassing telephone calls to plaintiff in a manner likely to cause annoyance or alarm, in violation of N.J.S.A. 2C:33-4. Over the course of a month and a half, defendant made a series of telephone calls and left voice messages for plaintiff, tape recordings of which were played for the court. In the messages, defendant repeatedly called plaintiff a "bitch" and a "whore" and threatened to "come after your ass." To justify his statements, defendant accused plaintiff of being a neglectful mother, abusing drugs, and having sex parties.
Specifically, defendant accused plaintiff of beating their son, yelling at the children, twice leaving the children home alone at night, keeping two Ecstasy pills in a locket in her dresser, and having a party at her house where there was a lot of "frolicking and laughter" and a car with New York license plates parked in her driveway. Defendant then admitted that some of the calls were in response to plaintiff hiring an attorney to enforce the PSA. Another call occurred after he had been shopping for two hours at Costco, when he discovered she had "cut off [his] card." The judge rejected all of these "reasons" as justifications for defendant's harassing telephone calls and entered the FRO.
On April 4, 2008, defendant filed a post-judgment motion pursuant to N.J.S.A. 2C:25-29d and Rule 4:50-1(f) seeking to vacate the FRO. In support of his motion, defendant certified to additional information he learned from his children after the entry of the FRO respecting plaintiff's extensive abuse and neglect of the children. He averred plaintiff was not testifying truthfully when she denied leaving the children home alone. He asserted his statement that he would "come after your ass" meant legal action to recover on a duplicate check he mistakenly sent her. Further, he asserted he was unaware at the time of the FRO that plaintiff was working in New York City and not returning home until after 9:00 p.m. on weekdays.
He also contended that on September 25, 2005, plaintiff reported to police that defendant was parked in front of her home in violation of the FRO. According to the police report, defendant was not in violation of the restraining order, as he was dropping off their son pursuant to the FRO's provision for curbside drop off of the children. Plaintiff confirmed to police that defendant did not exit the vehicle and did not attempt to make any contact with her. Defendant cited this incident as evidence of plaintiff's willingness to misuse the system to her advantage, "as she did with the FRO," to get him away from the house so her boyfriend could move in.
Plaintiff opposed defendant's motion, denying all of defendant's allegations about her, "even though they have nothing to do with the matter at hand," and suggested that they demonstrated his dysfunctional nature. She urged that his refusal to acknowledge that what he did was wrong and to blame her for his abusive conduct demonstrated a continuing need for the FRO. Furthermore, issues of visitation, child support, and college contributions remained in dispute. She also detailed some of the prior history of domestic violence, including assaults and verbal abuse. She certified that she continued to have substantial fear of defendant such that she takes a circuitous path to her office out of fear their paths will cross and expressed certainty his abusive behavior would resume if the FRO were dismissed.
On May 9, 2008, oral argument on the motion was heard and an order was entered denying the relief sought. The Family Part judge concluded there was no good cause for dismissal of the FRO under the statute, noting that nothing had changed other than "a period of time . . . has elapsed without a real problem." While residential custody of the parties' three children eventually passed from plaintiff to defendant after entry of the FRO, the acrimonious nature of the relationship between the parties appeared unchanged.
The judge found defendant had not met his burden under N.J.S.A. 2C:25-29d and Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), for dissolution of the FRO. She expressed concern about defendant's continuing perception that his behavior was plaintiff's fault. The judge found that plaintiff did not consent to having the FRO vacated and she remained fearful of defendant in light of the prior history of physical violence and the continuing disputes over multiple issues, all of which weighed in favor of continuing the FRO. The judge also noted there was a prior history of physical assaults. She rejected defendant's demand for a plenary hearing to determine whether he intended only to cause plaintiff to modify her behavior vis-à-vis the children because the language he used was extremely offensive, noting some of the communications occurred because he believed she was having sex parties. The judge found that the parties' relationship continued to be adversarial in the matrimonial case, which also militated in favor of continuing the FRO, as did defendant's failure to successfully complete domestic violence counseling. Further, she found defendant's age and good health did not support dissolving the FRO. Also, plaintiff presented a good-faith opposition to the relief, further supporting continuation of the FRO.
Factors favoring dissolution of the FRO were the absence of any contempt convictions, the lack of any evidence defendant was involved with drugs or alcohol, and the lack of any evidence defendant perpetrated violent acts upon other persons. Additionally, the absence of any foreign jurisdiction restraining orders favored dissolution of the restraining order. In balancing the above factors, the judge concluded "that this is not even a case that requires a plenary hearing. Nothing has changed other than the passage of time." The judge did not discuss the relief requested under Rule 4:50-1(f). This appeal followed.
Defendant contends the judge was required to conduct a plenary hearing to resolve factual disputes. Further, he asserts he has proven that he had no intent to annoy or harass plaintiff but only to persuade her to stop abusing and neglecting their children. Finally, he claims denial of his motion constitutes judicial approval of plaintiff's misleading statements and attempts to cover up her neglect and abuse.
Before turning to the specific issues raised on appeal, we briefly address our standard of review. We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (citing Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). However, in this case, there were no findings of fact based upon an evidentiary hearing.
Relief from an FRO is governed by N.J.S.A. 2C:25-29, which provides as follows:
Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.
In Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998), we adopted the factors enumerated by Judge Thomas H. Dilts in Carfagno, supra, 288 N.J. Super. at 434-45. Judge Dilts wrote that courts should consider a number of factors when determining whether good cause has been shown that the final restraining order should be dissolved upon request of the defendant: (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 the 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. [Ibid.]
Along with consideration of the Carfagno factors, we added that the previous history of domestic violence between the parties must be fully explored and considered to understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim's continued fear of the perpetrator. [Kanaszka, supra, 313 N.J. Super. at 607.]
We emphasized that in applications to vacate an FRO, the "inquiry into the history of the relationship and prior acts of domestic violence become important to consider in evaluating the necessity for continued protection." Id. at 608.
Additionally, not every motion for dissolution of a domestic violence restraining order requires a plenary hearing. . . . [T]he moving party has the burden to make a prima facie showing good cause exists for dissolution of the restraining order prior to the judge fully considering the application for dismissal. If that burden is met, the court should then determine whether there are facts in dispute material to a resolution of the motion prior to ordering a plenary hearing. Conclusory allegations should be disregarded. [Ibid. (citations omitted).]
Finally, "[t]he linchpin in any motion addressed to dismissal of a final restraining order should be whether there have been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal." Id. at 609.
That statutory linchpin is clearly missing here. We merely have compliance with the FRO over several years. Even if such were viewed as substantial changed circumstances, we conclude that the issues presented by defendant are without sufficient merit to warrant extensive discussion in this opinion, Rule 2:11-3(e)(1)(E), and we affirm substantially for the reasons expressed by Judge Honora O'Brien Kilgallen in her oral opinion delivered on January 2, 2004.
To the extent that defendant relies on Rule 4:50-1(f), which the judge did not address, that reliance is misplaced. It is clear that the factual bases for the relief requested were (1) mistake, which is governed by Rule 4:50-1(a); (2) newly discovered evidence, which is governed by Rule 4:50-1(b); and (3) plaintiff's misrepresentation to the court, which is governed by Rule 4:50-1(c). A motion governed by these subsections of the rule must be made within one year of the entry of the order. R. 4:50-2. Relief under Rule 4:50-1(f) is available for "any other reason justifying relief from the operation of the judgment or order." By its own terms, it does not apply to reasons for relief based on mistake, evidence discovered after entry of the order, or misrepresentation. What it does require is "exceptional situations," Court Inv. Co. v. Perillo, 48 N.J. 334, 341 (1966), justifying relief from a judgment or order for some "other reason," R. 4:50-1(f) (emphasis added). Defendant has demonstrated neither.
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