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M.S v. S.S

March 29, 2011

M.S., N/K/A M.W., PLAINTIFF-RESPONDENT,
v.
S.S., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-2426-94.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted March 21, 2011 - Decided

Before Judges Lisa and Sabatino.

In this unopposed appeal, defendant S.S. seeks to reverse the Family Part's denial of his motion pursuant to N.J.S.A. 2C:25-29(d) and Rule 4:50-1 to vacate a final restraining order ("FRO") issued against him under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"). The FRO was obtained by defendant's former wife, plaintiff M.S. (who now has the initials M.W.), after a hearing in 1994. The FRO was based on a finding that defendant had harassed plaintiff by making threatening statements to her.

At the time the court granted the FRO seventeen years ago, the parties were still husband and wife in a tumultuous marriage. The trial court was particularly concerned about allowing defendant, after he had committed harassment, back into the marital household where the parties' two minor children were living. In his bench opinion explaining why the FRO was then warranted, the trial judge stated that the parties should not continue to "be in the same place at the same time in residences together . . . if only because the children have parents [who] are now totally at war with each other." The trial judge perceived that the marital residence was "not a safe place, such that either one of the parties might in fact antagonize [the other] by serious gestures."

Shortly after the FRO was issued, the parties divorced. The older child is now in college and the younger child is being home schooled by plaintiff. Therefore, the parties still need to communicate with one another, on a very limited basis, on matters such as child support, medical expenses, and financial contributions for college.

Since the time FRO was issued in 1994, defendant tried, unsuccessfully, on four other occasions through April 2002, to have the FRO lifted. He contends that the persisting existence of the FRO has caused him problems at work, and that it has created an impediment to developing a positive relationship with his children.

Defendant filed his most recent motion to vacate the restraints in April 2010. In support of his application, defendant provided an expert report from a licensed psychologist. The expert met with defendant five times, including two clinical interviews. The expert also administered the MMPI personality test.

According to the psychologist, defendant suffers from anxiety and feelings of persecution, and defendant feels socially alienated and professionally defeated. Despite these problems, the expert concluded that the defendant's personality style is inconsistent with a person capable of, or inclined to, violence. The expert found significant that defendant, at least by his own account, has exhibited no acts of violence, impulse control, or other behavior in violation of the FRO since its entry in 1994. Consequently, the expert opined in his report that defendant poses "no conceivable danger to others," and therefore "there is no rational basis for any person to be protected from him."

In her opposition papers on the motion, in which she was then represented by counsel, plaintiff submitted a certification from herself and also from the parties' daughter. Plaintiff contended that she remains in fear of defendant, asserting that, contrary to his denials, he has indeed continued to act in a hostile and belligerent fashion towards her and the children.

The daughter's certification attached a lengthy letter in which the daughter described how her father has acted aggressively since the FRO was issued, and why she continues to be in fear of him. Among other things, she recounted an incident in October 2008, in which defendant allegedly became enraged and tried to suffocate her with a towel and to attack her brother.

Defendant, in a reply certification, denied that he had attacked either of his children. He maintained that his son is the one who became violent, after being ...


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