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L.K.O v. B.O

December 21, 2010

L.K.O.,
PLAINTIFF-RESPONDENT,
v.
B.O., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FV-06-330-09.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 12, 2010 - Decided Before Judges Lisa, Reisner and Alvarez.

Defendant B.O. appeals from the December 16, 2009*fn1 denial of his request to vacate a final restraining order (FRO) issued pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. For the reasons that follow, we affirm.

Defendant and his wife, plaintiff L.K.O., have four children. The family lived together when the events occurred which culminated in plaintiff's request for a temporary restraining order (TRO). Both parties were involved in the operation of a very successful family business. At present, in addition to the pending divorce initiated by plaintiff, defendant is pursuing an oppressive shareholder suit against plaintiff.

Plaintiff's domestic violence complaint alleged, among other things, that defendant threw her into a swimming pool while she was pregnant, told plaintiff "where he'll put her body," has "[broken] items in [the] house," and "has thrown pla[intiff]." Based in part on these representations, the TRO was issued on September 23, 2008.

On October 2, 2008, at the FRO hearing, both parties appeared in court with counsel. Defendant admitted to one act of domestic violence before now-retired Judge Testa, as a result of which the FRO issued. Defendant signed and dated the FRO, below the following boilerplate language:

Defendant hereby acknowledges receipt of the [FRO]. I understand that pursuant to this court [o]rder, I am not to have any contact with the named plaintiff . . . and that I can be arrested and prosecuted if I violate this [o]rder. I understand that . . . any person against whom a [FRO] in a domestic violence matter has been entered shall submit to fingerprinting and other identification procedures as required by law and I HAVE BEEN ADVISED THAT I MUST SUBMIT TO FINGERPRINTING AND OTHER IDENTIFICATION PROCEDURES.

An addendum attached to the FRO, signed by the parties and their respective counsel, addressed various marital and child-related issues, such as defendant's supervised visitation. The final sentence in the document, appearing immediately above the signatures of counsel and their clients, reads: "[w]e hereby consent to the form of this order pages 1-6 as an addendum to the FRO of October 2, 2008."

Judge Testa accepted defendant's admission that he smashed plaintiff's cell phone as the requisite factual basis for issuance of the FRO. When the judge asked defendant if he understood that his acknowledgment of the commission of one act of domestic violence was sufficient for entry of the order, defendant responded "yes." Defendant further stated that the admission was made of his own free will, and that he was not under the influence of drugs or alcohol.

Defendant's attorney did, late in the proceeding, express concern that defendant might not be competent to answer the court's questions:

[DEFENSE COUNSEL]: Your Honor, my concern is, I'm not confident that my client is comprehending the questions. He has some psychological and emotional issues --

THE COURT: So you don't think he's competent?

[DEFENSE COUNSEL]: I do believe he's competent . . . .

Approximately a month after issuance of the FRO, on November 12, 2008, plaintiff filed a divorce complaint. Five days later, defendant appealed the FRO, but ...


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