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J.N v. S.B

June 9, 2011

J.N., PLAINTIFF-RESPONDENT,
v.
S.B., DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-001191-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 18, 2011

Before Judges Cuff and Simonelli.

Defendant S.B. appeals from the denial of his second motion to vacate a final restraining order (FRO) entered on March 30, 2005. We affirm.

Defendant is a former New Jersey State Trooper and police officer.*fn1 He and plaintiff had a romantic relationship for approximately four years. After a lengthy trial, Judge Lisboa concluded that throughout their relationship, defendant engaged in numerous and egregious acts of domestic violence against plaintiff, including physical assaults and harassment. The judge entered the FRO. Defendant did not appeal.

In June 2008, defendant filed his first motion to vacate the FRO, arguing the parties had no contact since the entry of the FRO, plaintiff had an unsubstantiated fear of him, and the FRO prevents him from securing employment opportunities. Plaintiff opposed the motion. She advised the court she still feared defendant and was "still looking over her shoulder."

Judge Mark Nelson considered the factors set forth in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995) to determine whether defendant had shown good cause to dismiss the FRO. Those factors are as follows::

(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. [Id. at 35.]

The judge denied the motion, finding that it doesn't appear that [plaintiff is] telling me cavalierly sure, Judge, I'm afraid. And when I look at her face sitting there it doesn't look to me like she's just telling me yeah, Judge, I'm afraid just to tell me -- just to get back at [defendant] or to carry a vendetta on past three years. It looks to me that she's afraid. She tells me she's afraid.

Some people become afraid more than others. I have to apply the reasonable persons standard. She tells me she's afraid, she's still looking over her shoulder. She's apparently had -- it was a bad relationship that's noted between both of them, so they had a bad relationship.

The judge concluded plaintiff had rational concerns, was a reasonable person, and acted in good faith in opposing the motion. Defendant did not appeal.

In May 2010, defendant filed a second motion to vacate the FRO primarily arguing that the FRO should be vacated based on Carfagno factors two and three. He conceded he had two prior FROs issued against him in domestic violence cases involving other women (factor six), but argued plaintiff only had a subjective as opposed to an objectively reasonable fear of him because they had no contact for several ...


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