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S.L. v. B.S.

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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


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