February 8, 2011
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-119-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 11, 2011
Before Judges Carchman and Waugh.
Defendant F.C. appeals the denial of his motion seeking modification of the final domestic violence restraining order (FRO) previously entered against him, as well as seeking to reopen the domestic violence trial. We affirm.
The parties were married on October 10, 2003. Their only child, a son, was born in June 2008. They separated on July 7, 2008, as the result of a temporary domestic violence restraining order (TRO) entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The domestic violence complaint alleged that F.C. reacted violently when P.V. refused to agree to his proposed divorce agreement. An amended complaint and TRO were filed on July 10, 2008. The amended complaint alleged a prior history of domestic violence.
When the parties appeared for the return date of the TRO, the trial was adjourned to August 4, 2008. However, F.C. was allowed parenting time with his son, supervised by his father and the father's significant other. According to P.V., there were approximately nine such parenting sessions prior to August 14, 2008.
F.C. was arrested on August 20, 2008, and charged with a sexual offense involving P.V.'s teenage daughter from her first marriage. He remained incarcerated until a Monmouth County grand jury declined to return an indictment in October 2008, at which time he was released.
Another continuance order was entered in the domestic violence matter, again adjourning the final hearing and requiring that F.C.'s parenting time be overseen by Healing Hearts, a program offered by Ocean Township. On November 25, 2008, following several parenting sessions, the program's director informed the Family Part judge handling the domestic violence case that the agency would no longer "be able to work effectively" with F.C.
On December 1, 2008, following trial, the judge entered the FRO. F.C. did not appeal that order.
At approximately the same time as the entry of the FRO, P.V. filed a
complaint for divorce. That matter was assigned to a different Family
Part judge. Dr. Patricia Baszczuk, Ph.D., was appointed by the
matrimonial judge to facilitate bonding and reunification. Baszczuk
recommended that reunification be facilitated by having the parties'
son develop a relationship with his half-sister, F.C.'s daughter from
his first marriage, with the help of F.C.'s former wife.*fn1
She also recommended that "[c]onsideration might be given to
removing" the FRO to allow P.V. and F.C. to have contact during
therapy sessions involving their son, at which time they would be
supervised by the therapist.
P.V. was unwilling to agree to dismissal or modification of the FRO to permit contact during therapy sessions. Consequently, F.C. filed his motion for modification on November 30, 2009. He also sought to reopen the domestic violence case, alleging that he was denied due process because he did not learn of the existence of the amended complaint until his cross-examination during the trial. P.V. opposed the motion, and also filed a cross-motion asking that F.C. be required to participate in counseling.
The motion was heard on January 21, 2010, by the same judge who handled the domestic violence matter. She denied both motions. With respect to reopening the domestic violence case, she found that F.C.'s attorney had been aware of the amended complaint prior to the trial and that the court's records reflected that F.C. had been served with it. She had offered F.C. and his attorney the opportunity for a recess, but neither requested one.
With respect to modification of the FRO, she found that F.C. had not made a sufficient showing for modification in light of P.V.'s opposition, citing Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995). She also noted that there had been one violation of the TRO after it was issued. The implementing order was entered on January 21, 2010. This appeal followed.
Relief from a FRO is governed by N.J.S.A. 2C:25-29(d), which requires a showing of good cause. We adopted a non-exclusive list of factors, enumerated by Judge Dilts in Carfagno, supra, 288 N.J. Super. at 434-35, to determine whether a party has shown good cause sufficient to warrant dismissal of a FRO. Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998). The Carfagno factors include:
(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 435.]
A plenary hearing is not required for every motion to dissolve a FRO. Kanaszka, supra, 313 N.J. Super. at 608. "[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."
Ibid. "The linchpin in any motion addressed to dismissal of a [FRO] 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 Judge Honora O'Brien Kilgallen properly denied F.C.'s motion without holding a plenary hearing. F.C. failed to show substantial changed circumstances that constitute good cause for dismissing the FRO. The FRO had been in effect for approximately a year by the time of oral argument, and the relationship between the parties was still contentious. Early in the domestic violence case, there was a violation of one of the TROs. The relief sought would have required P.V. to be in F.C.'s presence, something she did not want to do. Even assuming that P.V.'s presence would have facilitated reunification between F.C. and his son, there was nothing in the record to demonstrate a prima facie case that her participation was the sole viable route to reunification. In fact, Baszczuk had only recommended that removal of the FRO be "considered." It was not her primary recommendation for reunification.
We have reviewed F.C.'s arguments with respect to his application to reopen or re-litigate the merits of the domestic violence matter, and find them to be without merit and not warranting extended discussion in a written opinion. R. 2:11-3(e)(1)(E). The record supports the conclusion that the amended complaint had been served on F.C. In any event, the trial transcript reveals that F.C.'s attorney had received the amended complaint prior to the trial and that the judge offered to afford time for counsel and client to confer. With respect to the merits of the FRO decision, F.C. chose not to appeal. He cannot collaterally attack the FRO by seeking to reopen the trial.
Finally, we observe that issues relating to the parties' child are appropriately determined in the matrimonial action, in which other methods of reunification were being considered at the time the briefing in this appeal was taking place. Absent unusual circumstances not present here, such issues are not appropriately litigated in the context of a prior domestic violence action. In the event there is a genuine need for an issue to be determined in both matters, application can be made to the presiding judge of the Family Part for assignment of both matters to the judge most familiar with the then current needs of the family, as long as there is compliance with N.J.S.A. 2C:25-29(d) with respect to the availability of the record of the original domestic violence trial.