July 19, 2010
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-1380-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued March 2, 2010
Before Judges Fuentes, Gilroy and Simonelli.
Defendant E.N. appeals from the April 17, 2009 Family Part order denying his motion to vacate a final restraining order entered on February 14, 2006 (the FRO) and to recuse the trial judge. We affirm.
Plaintiff and defendant had a romantic relationship for approximately one and one-half years. During that time, defendant was a police officer with the Guttenberg Police Department, and was married to another woman. Throughout defendant's relationship with plaintiff, defendant engaged in numerous acts of domestic violence, including threats upon plaintiff's life, physical violence, harassment, and stalking. Plaintiff's twelve-year-old daughter, other members of plaintiff's family, and her employer witnessed some of these acts.
In August 2005, plaintiff obtained a temporary restraining (TRO) against defendant, which she dismissed on September 7, 2005, believing that defendant would leave her alone. However, after an incident on October 20, 2005, plaintiff obtained another TRO.
After a trial on February 14, 2006, the trial judge concluded that defendant had committed acts of domestic violence against plaintiff and entered the FRO. As a result, defendant was barred from possessing a firearm and lost his job as a police officer.
Defendant appealed. We affirmed, R.P. v. E.N., No. A-3817-05T1 (App. Div. January 11, 2007), and our Supreme Court denied certification, R.P. v. E.N., 190 N.J. 393 (2007). In our opinion, we noted the numerous acts of domestic violence committed by defendant and concluded that the record "strongly supports a finding that defendant subjected [plaintiff] to a series of assaults, stalking, and harassment[,]" and that the credible testimony of [plaintiff] and her daughter established a long history of blatant and serious domestic violence. Defendant engaged in a course of conduct that included stalking, physical and psychological abuse, misuse of his status as a police officer, and threats to kill [plaintiff]. He also engaged in harassing phone calls after [plaintiff] withdrew her first [TRO] and before the October 20 incident.
Our conclusion is strengthened by our reading of the record, which supports [the trial judge's] finding that defendant was not a credible witness. Defendant's attempts to explain what he admitted were photographs of [plaintiff's] injuries lack the ring of truth even on a cold record.
His explanation of the incident in which he allegedly accidentally pulled a door off its hinges at [plaintiff's] work place is equally incredible. Further, his testimony is fraught with contradictions as he first portrayed his relationship with [plaintiff] as harmonious, then admitted that they fought constantly, and finally explained that [plaintiff], weighing ninety-eight pounds, was responsible for all of their violent encounters and all of her injuries. [R.P. v. E.N., supra, slip op. at 11-12, 14-15.]
On February 16, 2009, defendant filed a motion pursuant to N.J.S.A. 2C:25-29d to vacate the FRO, arguing that he had met the applicable factors in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995). As to factor number 2 (the victim's fear of defendant), defendant stated that he and plaintiff had no contact for over three years. As to factor number 11 (any other factors the court may deem relevant), defendant claimed that he suffered financial difficulty as a result of losing his job, and that he planned to return to a law enforcement position. Defendant also contended that the original prosecution was biased, tainted, and violative of his Fourteenth Amendment*fn1 due process rights. He claimed that a conspiracy existed between plaintiff and her uncle, the then-Mayor of Guttenberg, to bring charges against him "for the sole purpose of firing [him] because of his interracial relationship with [plaintiff]."
Alternatively, defendant sought to recuse the trial judge. His attorney claimed at oral argument of that motion on March 11, 2009, that an appearance of impropriety existed because defendant was assigned to the judge's court as a Sheriff's officer for one month in 1995 to 1996; however, defendant did not file a certification stating that he was, in fact, assigned to the judge's court, or claim bias or prejudice as a result thereof.
Plaintiff opposed the motion. In a certification, she reiterated the violent acts to which defendant had subjected her, stating, in relevant part, as follows:
I am extremely terrified for my safety from the defendant based upon what he has put me through.
The defendant has told me he will shoot me.
I believe his threats.
I am afraid for my 15 year old daughter who witnessed the defendant's abuse and testified against him.
We are both petrified that he will harm us.
I have trouble sleeping at night and I am constantly looking over my shoulder waiting for the defendant.
On March 11, 2009, the judge denied defendant's motion for recusal, concluding that he had no recollection of defendant being assigned to his court, and defendant had not submitted proof warranting his recusal.
On April 17, 2009, the judge heard oral argument on defendant's motion to vacate the FRO. Defendant's counsel waived defendant's appearance. After considering all of the Carfagno factors, the judge denied the motion without a plenary hearing, finding as follows:
I'm satisfied that that the time of the [trial], that [defendant] had persisted in the course of [conduct], harassing, threatening, physical[ly] abusive. There were at least two, perhaps three allegations of physically abusive behavior, threats to kill, threats to shoot [plaintiff], threat to contact DYFS to have DYFS intervene perhaps to remove [plaintiff's] other child, harassment by going to the home [of plaintiff], attempting to gain entry to her house late at night or early morning hours. AS I indicated, my recollection of the testimony and refreshed by the certifications and the [trial] transcript, is the [defendant's] denial was just a general denial that none of this happened, [plaintiff] is making this all up.
I was satisfied then, still satisfied that the acts took place as described by [plaintiff], essentially. The Appellate Division, likewise, came to that same conclusion. I'm satisfied that there is no significant change in circumstance that requires a plenary hearing. Having considered all of the [Carfagno] factors, I find no factor controlling. The only factor which really seems to be in dispute is the objective fear of [plaintiff].
I'm satisfied that that cannot be [dis]proved at an evidential proceeding. [Plaintiff] will just say I'm afraid of him, based upon my history with him, and that there would be, again, the same type of testimony that none of this happened, she's lying.
The judge also found "totally without merit" defendant's claim of bias and taint in the original prosecution.
On appeal, defendant contends that (1) he made a prima facie showing of good cause to vacate the FRO; (2) he is entitled to a hearing to determine the legitimacy of plaintiff's fear; (3) his constitutional right of confrontation was violated; (4) the matter must be remanded to a different judge because defendant was not oral argument at the time the motion was argued; (5) the FRO should be vacated due to the judge's appearance of impropriety; and (6) the FRO should be vacated because the original prosecution was biased, tainted, and violative of his Fourteenth Amendment due process rights. We disagree with these contentions.
Relief from an FRO is governed by N.J.S.A. 2C:25-29d, which requires a showing of good cause. In Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998), we adopted the eleven Carfagno factors that the court should consider when determining whether good cause has been shown:
(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. [Carfagno, supra, 288 N.J. Super. at 434-35.]
When considering factor two, 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. "[T]he 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. The "inquiry into the history of the relationship and prior acts of domestic violence becomes important to consider in evaluating the necessity for continued protection." Id. at 608.
A plenary hearing is not required for every motion to dissolve a FRO. Ibid.
[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.]
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.
Applying these principles, we are satisfied that the judge properly denied defendant's motion to vacate the FRO. The judge's factual analysis reveals that he properly considered all of the Carfagno factors, including whether plaintiff fears defendant, and properly concluded that defendant failed to demonstrate a substantial change in circumstances and good cause for vacating the FRO. The judge also recognized that an objective standard of fear applied and correctly concluded that the history of domestic violence and the totality of circumstances established the reasonableness of plaintiff's continued fear of defendant.
We also agree that a plenary hearing was not necessary on the issue of plaintiff's objective fear of defendant. The history of domestic violence in this case is compelling, and causes plaintiff to remain "petrified" that defendant will harm her and her daughter. Given this history, plaintiff's fear is objectively reasonable.
Defendant's remaining contentions are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). However, we make the following brief comments.
Defendant never substantiated his attorney's claim that defendant was assigned to the judge's courtroom, and the judge had no recollection of such assignment. "[A] judge need not 'withdraw from a case upon a mere suggestion that he is disqualified "unless the alleged cause of recusal is known by him to exist or is shown to be true in fact."'" Chandok v. Chandok, 406 N.J. Super. 595, 603 (App. Div.) (quoting Panitch v. Panitch, 339 N.J. Super. 63, 66-67 (App. Div. 2001)), certif. denied, 200 N.J. 207 (2009).
Defendant could and should have raised in his direct appeal his contention that the original prosecution was biased, tainted, and violated his Fourteenth Amendment rights. He is barred from doing so now. State v. Guzman, 313 N.J. Super. 363, 372 (App. Div.), certif. denied, 156 N.J. 424 (1998). Further, defendant provides no evidence supporting these contentions.