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S.L. v. B.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


March 24, 2010

S.L., PLAINTIFF-RESPONDENT,
v.
B.S., DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-135-07.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 22, 2010

Judges Reisner and Chambers.

Defendant B.S. appeals from the order of May 8, 2009, denying his application to vacate a domestic violence final restraining order against him. In denying the application, the trial court found that the victim, plaintiff S.L., remained in fear of defendant. In making this determination, the trial court appeared to rely on the victim's subjective fear and did not make findings to support a conclusion that the victim had a basis to be objectively fearful. Accordingly, we reverse and remand in order that the trial court may reconsider the application in light of the correct standard and make appropriate findings of fact.

A final restraining order was entered against defendant on September 21, 2006, pursuant to the Prevention of Domestic Violence Act. N.J.S.A. 2C:25-17 to -35. He admitted to harassing plaintiff. At the time, plaintiff was sixteen and defendant was nineteen, and they had been in a dating relationship for about one and one-half years, although the dating relationship had recently come to an end.

On December 11, 2008, defendant moved for dissolution of the final restraining order. On May 9, 2009, over two and one half years after the final restraining order had been entered, the trial court conducted a plenary hearing on the sole question of whether plaintiff continued to have a reasonable fear of defendant. At the conclusion of the hearing, the trial court denied the application on the basis that plaintiff continued to fear defendant.*fn1

Testimony from the plenary hearing reveals that the final restraining order was issued due to an incident that took place on August 30, 2006. On that day, plaintiff asked defendant to drive her to a friend's house. As he was doing so, they fell into an argument. Defendant then turned around to take plaintiff back home. Their quarrel escalated. Defendant, by his own admission put his hand by her mouth. She claimed his hand covered her mouth so that she could not breathe. When they arrived at plaintiff's home, she exited the vehicle and by her own admission, kicked the vehicle's door, and struck it with her purse. Defendant exited the vehicle. When he grabbed her arms, she punched him. He then pushed her to the ground and held her there.

Plaintiff also testified to defendant's controlling conduct and other behavior while they were dating. The trial judge believed her testimony that on one occasion defendant had scared her with a gun, although defendant denied this conduct.

In 2006, shortly after the final restraining order was issued, plaintiff applied for employment where defendant was working, but she did not obtain the position. She also went to his place of employment when he was there, although she claims she thought he was not working that day, and she then contacted the police. It appears from this record that no charges were brought against defendant. Thereafter, the parties have had no contact.

In seeking dissolution of the order, defendant testified that in the years that have transpired, he had never violated the final restraining order; no convictions had been entered against him; he completed the anger management course required by the order; he was just about to complete his college education, obtaining a degree in history; he had no substance abuse issues; nor had he ever been in any trouble with the law other than this matter. His concern was that presence of the order would prevent him from obtaining employment in the field of teaching.

Plaintiff opposed the application, because she was still in fear of defendant. Due to this fear, which the trial court found to be authentic, the application was denied. On appeal, defendant contends that when considering plaintiff's fear, the trial judge applied a subjective rather than objective standard as required by the law, and that the decision should be reversed.

The statute permits a final restraining order entered under the Prevention of Domestic Violence Act to be dissolved "[u]pon good cause shown." N.J.S.A. 2C:25-29(d). Judge Dilts in Carfagno v. Carfagno, 288 N.J. Super. 424, 435 (Ch. Div. 1995), set forth the following criteria for a court to consider when determining whether good cause has been shown:

(1) [W]hether 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.

We are in accord with the approach set forth in Carfagno. Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998). In evaluating these factors, we must keep in mind that "[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.

The case before us focuses on factor number two, "whether the victim fears the defendant." Carfagno v. Carfagno, supra, 288 N.J. Super. at 435. As Judge Dilts so cogently explained in Carfagno, when considering whether the victim fears the defendant, the court must look at objective fear, not subjective fear. Id. at 437-38. "Objective fear is that fear which a reasonable victim similarly situated would have under the circumstances." Id. at 437. "Subjective fear is the fear produced by and within the mind of the victim as the victim understands and communicates it." Ibid. The standard is objective fear because "[t]he duration of an injunctive order should be no longer than is reasonably required to protect the interest of the injured party." Id. at 438 (quoting Trans Am. Trucking Serv., Inc. v. Ruane, 273 N.J. Super. 130, 133 (App. Div. 1994)). If a subjective standard were to be applied, the scope of the injunction might be broader than reasonably necessary to protect the victim and would unnecessarily infringe on the defendant's rights. Ibid.

Thus, the focus is not whether the victim in the case at hand is subjectively experiencing fear but rather whether a reasonable person in those circumstances would be afraid. The whole point of the order is to protect the victim from harm, and thus courts will consider "whether there is a "real danger of domestic violence recurring." Stevenson v. Stevenson, 314 N.J. Super. 350, 364 (Ch. Div. 1998).

When setting forth the law, the trial judge correctly recognized that an objective standard of fear applied, stating that the "issue for today is whether the plaintiff has a real, objectively based fear of the defendant." However, his factual analysis reveals that he considered whether plaintiff in fact experienced fear, that is her subjective fear, and not whether a reasonable person in her circumstances would be fearful of defendant. He found that plaintiff "is substantially impacted and is substantially in fear for her safety from [defendant] as she sits here today." The court then went on to consider whether that fear was a reasonable objective fear and stated "I believe that [plaintiff] is still objectively in fear and reasonably in fear of [defendant]." While noting the "great strides" that defendant has made, recounting his near completion of a bachelor's degree and the fact that he handled the final restraining order "maturely and responsibly," the trial judge further stated that plaintiff "is still suffering from the impact and consequences of an abusive relationship" with defendant. This statement is thus focusing on the subjective impact of these events upon plaintiff, not whether a reasonable person in plaintiff's position would reasonably fear defendant who has been acting "maturely and responsibly."

While acknowledging that both parties were "young and immature" in 2006 and presumably have grown up since then, the trial judge declined to lift the final restraining order concluding that plaintiff "still operates under a real, and appropriate and, quite frankly, understandable fear of the defendant at this time." He provides no explanation as to why this fear is "appropriate" or "understandable."

The judge then explained to plaintiff that counseling may be available to her through domestic violence advocacy groups and that such counseling "would have a collateral benefit, I guess, arguably, by extension, to [defendant] that when and if that happens that might provide a further opportunity to [defendant] to - if, at the appropriate time, for this final restraining order, perhaps to be dissolved." This statement further underlines the court's emphasis on the subjective mental state of this particular victim rather then whether a reasonable person in similar circumstances would have fear.

To conclude that the objective fear factor has been met, a court must not only find that a reasonable person in similar circumstances as the victim would be fearful, but it also must set forth the factual basis for reaching this conclusion. The subjective fear of the victim is not sufficient.

Further, as a back drop to this entire issue, one must remember that the consideration of the victim's objective fear is part of a larger analysis seeking to determine whether or not the order is needed to protect plaintiff. The Prevention of Domestic Violence Act protects the victim of domestic violence from both physical and mental or emotional harm, and it has been noted that fear of defendant "is the center of the cycle of power and control existing in domestic violence situations." Carfagno, supra, 288 N.J. Super. at 436. This consideration is of particular concern where the parties have children. Id. at 437. However, in this case the parties have no children together, have no contact, and are now living very separate lives. The purpose of the Prevention of Domestic Violence Act is to protect the victims, not punish the person who committed the act. Id. at 434. Thus, good cause must be evaluated in light of that goal.

We are not satisfied based on this record that the trial judge applied the objective standard or if it was applied, that he identified a factual basis to support that conclusion. We reverse and remand for further findings. We note that almost a year has passed between the trial court's ruling and our decision. As a result, on remand the parties should be allowed to supplement the record to bring it up-to-date in order that the trial court's decision is based on current information.

Reversed and remanded.


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