July 22, 2011
On appeal from the Superior Court of New Jersey, Family Part, Bergen County, Docket No. FV-02-0840-98.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 3, 2011
Before Judges Graves and Messano.
Defendant J.K. appeals from the May 26, 2010 order of the Family Part denying his motion for reconsideration of the earlier denial of his motion to dissolve a final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 through -35 (the PDVA). Before proceeding to the particular facts of this case, we set forth the legal standards that guide our review.
Pursuant to N.J.S.A. 2C:25-29(d):
Upon good cause shown, any [FRO] may be dissolved or modified upon application to the Family Part . . ., but only if the judge who dissolves or modifies the order is the same judge who entered the order, or has available a complete record of the hearing or hearings on which the order was based.
We have held:
In cases where the motion judge did not enter the final restraining order . . . the "complete record" requirement of the statute includes, at a minimum, all pleadings and orders, the court file, and a complete transcript of the final restraining order hearing. Without the ability to review the transcript, the motion judge is unable to properly evaluate the application for dismissal. [Kanaszka v. Kunen, 313 N.J. Super. 600, 606 (App. Div. 1998).]
"Only where the movant demonstrates substantial changes in the circumstances that existed at the time of the final hearing should the court entertain the application for dismissal." Id. at 608.
"[N]ot every motion for dissolution of a domestic violence restraining order requires a plenary hearing." Ibid.
[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. If that burden is met, the court should then determine whether there are facts in dispute material to a resolution of the motion prior to ordering a plenary hearing. [Ibid. (citing M.V. v. J.R.G., 312 N.J. Super. 597, 599-600 (Ch. Div. 1997)).]
"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.
In this case, plaintiff obtained an FRO in 1997 before a judge who had since retired when defendant made his motion to vacate the restraining order in 2010. The transcripts of the proceedings leading to the temporary restraining order (TRO) and the FRO were apparently "purged" and unavailable. We explain the procedural history of this case in greater detail below.
When considering the merits of a defendant's request to dissolve an FRO, "[w]ith protection of the victim the primary objective, the court must carefully scrutinize the record and carefully consider the totality of the circumstances before removing the protective shield." Id. at 605 (emphasis added). In this regard, we have specifically endorsed the "factor-analysis approach . . . set out in the well-reasoned opinion of Judge Dilts in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995)." Id. at 607. Specifically,
To accomplish the goal of protecting the victim, courts should consider a number of factors when determining whether good cause has been shown that the final restraining order should be dissolved upon request of the defendant: (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 434-35.]
With this framework in mind, we have considered the arguments raised by defendant in light of the record and applicable legal standards. We affirm substantially for the reasons expressed by Judge Frances A. McGrogan in her oral opinion.
J.K. and his former wife, plaintiff I.K., n/k/a I.T., married in 1993 and had one child together, a daughter born in January 1994. Marital troubles ensued, the parties separated and defendant filed for divorce in 1996 in Florida, where the couple then resided.
In January 1997, without telling defendant beforehand and without disclosing her ultimate location, plaintiff left for New Jersey with her daughter. Defendant was unable to locate them for several months. In August 1997, defendant located plaintiff and served her with "paperwork . . . to force [her] to return to Florida with [his] daughter."*fn1
Plaintiff obtained a TRO and, subsequently, an FRO on September 30, 1997. The TRO is not in the appellate record, although the judge referred to its contents at the initial hearing on defendant's motion for reconsideration. Plaintiff had alleged that "a man" called her New Jersey neighbors "claiming to be a Miami sergeant, and asking about plaintiff and her location." The judge further noted that in the "prior history" section of the TRO, plaintiff alleged defendant "repeatedly threatened to kill himself with . . . a gun, if the parties didn't reconcile, and . . . told his counselor that he would kill the plaintiff's mother. He threatened to disappear with the child. He forced the plaintiff to have sex, accused her of having affairs, he was screaming[,] cursing, and stalking."
The FRO is in the appellate record but, as noted, there is no transcript of the hearing that led to its issuance. Apparently, despite the provisions of N.J.S.A. 2C:25-29(b) ("any restraining order issued by the court shall bar the defendant from purchasing, owning, possessing or controlling a firearm . . . during the period in which the restraining order is in effect or two years whichever is greater"), defendant was not prohibited from possessing firearms as part of the relief granted in the FRO.*fn2
Although the record does not contain the motion papers, plaintiff's opposition, or the transcript of any proceedings that occurred, it is undisputed that defendant filed a pro se motion to dissolve the FRO sometime in early 2010. In a written statement of reasons attached to the March 5, 2010 order denying defendant's request, Judge McGrogan "applied the factors outlined in Carfagno" and concluded that defendant "ha[d] not established good cause." The judge further noted that plaintiff did "not consent to dissolving the restraining order," and that she "continue[d] to have a reasonable fear of [defendant]" who "attempt[ed] to learn of her whereabouts." The judge found that "the victim's fear [was] reasonable given the underlying offense that led to the final restraining order: [defendant's] mental instability, his threats to kill the victim's mother, threats to disappear with their child and stalking behaviors." Furthermore, the judge noted that defendant "presented no evidence of employment that would require the use of a firearm."
Now represented by counsel, defendant filed a motion for reconsideration. On April 16, 2010, after hearing from defendant and plaintiff, who appeared pro se telephonically, the judge decided to conduct a plenary hearing on defendant's application and adjourned the proceedings to permit the parties to prepare and produce other witnesses.*fn3
The plenary hearing took place on May 18, 2010. Defendant testified that he presently resided in Georgia and was employed as "a bail recovery agent and licensed private investigator." He further testified that he was required by Georgia to carry a firearm in his position as a bail recovery agent. Defendant denied any "physical violence" between him and plaintiff during their marriage, but admitted there "was arguing."
In 1996, after they separated, defendant told plaintiff he was contemplating suicide, and she called the authorities who detained defendant and "took [him] into protective custody." Defendant believed he voluntarily spent three days in a hospital for psychiatric evaluation, was prescribed Prozac, which he took for "[l]ess than a year," and received no further medication or treatment.
Defendant admitted that in late 1996, while still in Florida, he and plaintiff were having an "argument" about their daughter and the police responded. After plaintiff left for New Jersey, defendant located her and called her neighbors in an effort to locate his daughter.
In December 2009, a background check conducted on defendant by the authorities in Cobb County, Georgia revealed the 1997 FRO. Defendant contended that if the FRO was not dissolved, "[his] firearms license w[ould] be revoked[,]" causing him to lose his job as a bail recovery agent.
Defendant had sporadic visitation with his daughter in New Jersey after the divorce. On those occasions, he had contact with plaintiff and there were never any "incidents." Defendant also claimed that plaintiff did not keep him advised of his daughter's location and thwarted his attempts to maintain phone contact with her. Defendant had not spoken to his daughter since the summer of 2007, although he wanted his "daughter to be part of [his] life." Defendant had "no desire whatsoever to see" plaintiff and his sole motivation in seeking dismissal of the FRO was "[his] job."
Defendant produced two other witnesses. Bryan Gary Hergesell testified telephonically that he had been a police officer in Georgia for eleven years and operated a "bail recovery business." Hergesell knew defendant professionally and defendant had a reputation for being able to "talk to people to resolve the situation to where violence is not needed." Brian Clark also testified telephonically. Defendant worked for his company, Clark Bonding, and together they had operated a private investigations business. Clark described defendant as "truthful . . . honest and quite well recognized around the community." According to Clark, defendant possessed "a very peaceful demeanor."
Plaintiff testified telephonically.*fn4 After leaving Florida with her daughter, she had lived in New Jersey for eleven years and had resided at the same address, with the same phone number, for nine years. She disputed that defendant attempted to contact his daughter with any frequency and claimed that he did not avail himself of court-ordered visitation. Defendant was in arrears of his child support. Plaintiff admitted that she moved back to Florida with her daughter in 2008.
Plaintiff claimed that during defendant's last phone conversation with their daughter in 2008, he berated and screamed at the child. Defendant called back, spoke to plaintiff and a "very heated argument" ensued. Defendant tried to call again in 2009, but when his daughter recognized who it was, she refused to answer the phone and called her mother at work, "shaking [and] crying."
Plaintiff testified that defendant was "totally out of control when he g[ot] upset," and that he had a "way . . . to use his credentials to manipulate people to let him have whatever information he want[ed]." Plaintiff had not seen defendant since 2007 when he came to New Jersey to visit their daughter, and had not spoken to him since his 2008 phone conversation.
Plaintiff described in detail the events that led to the parties' separation and the issuance of the FRO. Defendant would "become very violent and start punching the walls, screaming and threatening" her whenever she spoke of separating. Defendant said "he couldn't live without [her], and that he wanted to stay with the whole family, and it's always going to be just the family and no one else in our lives." Plaintiff claimed that defendant "had [a] tendency of leaving [his firearms] around the table," so as to "intimidate [her]." On one occasion, after defendant threatened suicide, plaintiff called the police, whose response led to defendant's psychiatric evaluation and temporary commitment. Afterwards, defendant told her he would not continue to take "[his] medication" because of his job. After plaintiff left for New Jersey, defendant was able to locate her address and contacted one of her neighbors "claiming to be [a] sergeant, and that they were looking for us."
On cross-examination, plaintiff indicated that her problems with defendant centered on their daughter, and noted, "It's nothing to do with me personally." However, plaintiff also testified that defendant was "obsessed with [her]." Without the FRO in effect, defendant "would have shown up many times at [her] house to curse at [her] over what [wa]s happening with his daughter or call [her]." Defendant's harassing behavior "stopped when he got the restraining order."
Judge McGrogan rendered her oral decision during a subsequent hearing at which both parties appeared telephonically. After extensively reviewing the testimony from the plenary hearing, the judge noted that plaintiff "continues to be afraid of [defendant]." She then considered the factors outlined in Carfagno, supra.
The judge first noted that plaintiff did not consent to vacation of the order. Regarding plaintiff's "objective fear" of defendant, the judge stated:
I listened to the testimony of both parties and [defendant's] witnesses. I find [plaintiff's] fear to be reasonable. Given the credible history she provided, specifically, [defendant's] threats to kill her, his use of guns to intimidate [her], his psychiatric history, and the continued display of anger and out-of-control behavior over the telephone regarding the child even after the entry of a [FRO].
[Plaintiff] has been running scared from [defendant] for 14 years. Her fear and anxiety are palpable from her testimony. I find a reasonable victim similarly situated would continue to fear [defendant] under the circumstances. This weighs in favor of continuation of the order.
The judge further noted that plaintiff's "credible testimony" regarding continuing arguments over their daughter since entry of the restraining order demonstrated the FRO "ha[d] not been effective in breaking the cycle of attempted control and domination exercised by [defendant] and point[ed] toward remaining with the [FRO] in effect."
The judge then found that defendant had not violated the FRO, had no problems with drugs or alcohol, and had not been involved in acts of domestic violence with others. All this weighed in favor of dissolution.
However, the judge expressed "significant concerns" over the lack of any documentation that defendant engaged in "follow-up treatment" after being psychiatrically committed, or in "anger management therapy, [or] domestic violence counseling, or any other therapy, whatsoever." The judge also concluded that contrary to defendant's claim that the FRO was being used to alienate his daughter, plaintiff "ha[d] acted in good faith in opposing this [m]otion."
The judge carefully considered "other factors" in evaluating defendant's request, specifically, "the implication of the [FRO] on [defendant's] jobs." She noted that although defendant needed to possess a firearm "as a bail recovery agent, . . . he . . . d[id] not need a firearm for his private investigator job." Thus, this Carfagno factor was in "equipoise."
After weighing all "these factors qualitatively, not quantitatively," the judge concluded:
I have continued concerns regarding the reasonable and palpable fear of this victim. The threat of the use of firearms and the underlying offenses that led to the [FRO].
[Defendant's] lack of counseling of psychiatric follow-up; his ability to access information regarding the victim; despite her attempts to hide from him, his ongoing troubled relationship with their daughter and confrontations with the victim over their child. These factors significantly outweigh the factors in favor of dissolving the restraining order.
Judge McGrogan denied defendant's motion for reconsideration and this appeal ensued.
In a single point heading, defendant argues that the judge "erred by not dissolving the [FRO] as there is no objective reason for it to remain in place." In support of this contention, defendant asserts that Judge McGrogan's findings regarding the various Carfagno factors that mitigated against dissolution were not supported by credible evidence. He notes, for example, that after his "voluntar[y]" hospitalization for psychiatric problems, there was no counseling ordered by his treating doctors, and that the FRO did not require he attend domestic violence counseling. Defendant notes further that "there is no current relationship" between him and plaintiff since he had not seen or spoken to her in years. Lastly, defendant contends that any fear expressed by plaintiff was "plainly unreasonable" and premised upon concerns for her daughter, not herself.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). "We ordinarily defer to the factual findings of the trial court because it has the opportunity to make first-hand credibility judgments about the witnesses . . . ; it has a 'feel of the case' that can never be realized by a review of the cold record." N.J. Div. of Youth & Family Servs. v. E.P., 196 N.J. 88, 104 (2008) (quoting N.J. Div. of Youth & Family Servs. v. M.M., 189 N.J. 261, 293 (2007)). This is particularly true "[b]ecause of the family courts' special jurisdiction and expertise in family matters." Cesare, supra, 154 N.J. at 413.
In this case, Judge McGrogan relied upon the credibility determinations she made after considering the testimony of both parties. It is true that the FRO did not mandate defendant's attendance at anger management or domestic violence counseling; testimony regarding defendant's commitment for psychiatric evaluation and follow-up medication was limited solely to what we have cited above.
However, contrary to defendant's characterization of the testimony, Judge McGrogan specifically found that plaintiff's fear of defendant was "reasonable and palpable." Given our scope of review, we find no basis to disturb Judge McGrogan's findings regarding this paramount issue. Implicit in the judge's conclusion to deny defendant's motion was recognition that "protection of the victim [is] the primary objective" in deciding whether the FRO should be dissolved. Kanaszka, supra, 313 N.J. Super. at 605.