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D.A v. W.W

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 7, 2011

D.A., PLAINTIFF-RESPONDENT,
v.
W.W., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-000621-96.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 16, 2011

Before Judges Reisner and Alvarez.

Defendant W.W. appeals from the October 21, 2010 denial of his motion 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 remand for the trial judge to reconsider the application after a plenary hearing, make necessary findings of fact, and analyze the legal question in light of the factors outlined in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).

The parties have one child, now age sixteen. When plaintiff obtained an FRO against defendant on September 7, 1995, neither party was represented. The transcript reflects that defendant asked for a postponement so he could retain the attorney with whom he had consulted, but who was not available on that date. Defendant told the judge he had assumed he was not permitted to speak until plaintiff completed her testimony, and did not request the postponement until that time. At that point, the judge informed him it was too late to postpone the hearing, asked him some questions, went on to make findings, and issued the FRO. In support of the application, plaintiff alleged defendant had pushed her on one occasion, threatened to push her out of a window, and verbally harassed her.

Some four months later, in December 1995, defendant was found guilty of violating the FRO because of a statement he made to plaintiff regarding visitation. We reversed the conviction on the basis that his words were "trivial" and "non-actionable." See State v. Wilmouth, 302 N.J. Super. 20, 23 (App. Div. 1997). There have been no further proceedings between the parties to the date of this application.

When defendant filed to vacate the FRO on June 21, 2010, plaintiff cross-moved for an increase in child support and for future contributions to the child's college education. Plaintiff was unrepresented at the ensuing October 21, 2010 hearing.

This is the sum and substance of plaintiff's testimony in opposition to dissolution of the FRO: "[F]irst of all . . . I want to know when does the fear go away? Because I don't think he's reformed. And when he got the paperwork, my answer, he didn't call me, Your Honor. You know what . . . he did, he called our child." After that, the judge appeared to cut off her testimony.

The court nevertheless denied both applications. Although noting the case involved only "verbal abuse and intimidation," the judge observed that, when those confrontations occurred fifteen or sixteen years prior, it was defendant's "intention to place [plaintiff] in fear." The court went on to conclude plaintiff was acting in good faith in opposing defendant's request and that it "saw nothing in the certification of defendant that would indicate to me that this relationship [as of] today's date is a normal relationship between two people not in fear of one [an]other. I don't find it. And I find that it's necessary to continue this order." He also explained "the relationship between the parties today has been civil to a degree, and mostly because of the fact that the plaintiff is muzzled by her fear to really address matters on an equal footing with the defendant."

We do not disturb a trial court's factual findings unless unsupported by "adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), and we pay particular deference to the Family Part's expertise. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

Defendant's principal contention on appeal is that the court simply failed to apply the eleven criteria enumerated in Carfagno in reaching its decision. See Carfagno, supra, 288 N.J. Super. at 435. He further contends his contacts with plaintiff since entry of the FRO have been peaceful and there is no rational or objective basis for plaintiff to fear him.

In addition to the October 21, 2010 decision denying the dissolution request rendered from the bench, the judge filed an amplified statement of reasons pursuant to Rule 2:5-1(b) on November 4, 2010. He said he had considered each and every Carfagno factor, despite not specifically mentioning them during the course of his oral decision, and for that reason felt compelled to amplify the record with a written analysis.

Reiterating that plaintiff continued to be in fear of defendant, the judge observed the victim was "stress[ed]" by her "fear of the defendant's attempts to assert power and [] control over her." He did not refer to the testimony that led him to this conclusion.

The judge distinguished this application from Carfagno by stating defendant did not impute credible motivation on the plaintiff's part for presenting false testimony. The distinction in our view is irrelevant, as plaintiff did not testify at all regarding the basis for her fear, and defendant did not accuse plaintiff of anything more than unfair opposition to his application.

The judge made additional findings for which we find no support in the record, such as that defendant completed counseling related to the FRO. The court's written decision ended in this manner:

[T]he existence of the restraining order is working just fine in limiting what could be more threatening, more harassing and more manipulative behavior by the defendant.

Accordingly, there doesn't appear to be any change of circumstances that would convince this court that continued enforcement of the final restraining order would be inequitable, oppressive, or unjust, or a contravention of the policy and purpose of the law. Johnson & Johnson v. Weissbard, 11 N.J. 552, 555 [] (1953).

The eleven Carfagno factors are:

(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.]

In assessing these factors, we keep in mind "[t]he linchpin in any motion addressed to dismissal of a final restraining order should be whether there has been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal." Kanaszka v. Kunen, 313 N.J. Super. 600, 609 (App. Div. 1998).

Carfagno requires the person opposing dissolution of an FRO have an objective basis for fear, because "[t]he duration of an injunctive order should be no longer than is reasonably required to protect the interest of the injured party." Carfagno, supra, 288 N.J. Super. at 438 (quoting Trans Am. Trucking Serv., Inc. v. Ruane, 273 N.J. Super. 130, 133 (App. Div. 1994)). As the Act's general purpose is the protection of victims from real harm, indefinite continuation of an FRO requires a parallel, real danger of recurring domestic violence. Stevenson v. Stevenson, 314 N.J. Super. 350, 364 (Ch. Div. 1998).

There is no basis for such a conclusion in this case. The trial court said this was a "verbal abuse and intimidation" scenario from its reading of the transcript of the original proceedings which occurred fifteen years prior. Yet, we cannot glean from the record of the 2010 proceeding the source of the judge's belief that additional verbal harassment occurred postorder, or that defendant manipulated plaintiff. Although the parties clearly do not have a cordial relationship, after fifteen years without incident, more was required to justify the court's denial of defendant's request than plaintiff's good faith opposition.

The trial court's findings were not supported by "adequate, substantial and credible evidence"; in fact, there were virtually no findings at all. That such findings must be made upon a more complete record than this is abundantly clear. R. 1:7-4; see also Strahan v. Strahan, 402 N.J. Super. 298, 310 (App. Div. 2008). We therefore reverse and remand for a plenary hearing to be conducted with regard to defendant's application and for the entry of appropriate factual findings and conclusions of law. At that hearing, both sides shall be permitted to testify fully concerning all pertinent issues.

Reversed and remanded for further proceedings in accord with this decision.

20110607

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