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D.M.N. v. D.R.G.

November 20, 2009

D.M.N., PLAINTIFF-RESPONDENT,
v.
D.R.G., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-1022-04-B.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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