On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-242-87.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Ashrafi and Fasciale.
Defendant G.S. appeals from an October 26, 2010 order of the Family Part denying his motion to vacate a twenty-four year-old domestic violence restraining order. He argues that the Family Part was mistaken in its evaluation of factors relevant to the merits of his motion. Our review of the record redirects us to a different but related question - whether an evidentiary hearing was necessary to rule on defendant's motion. We affirm the Family Part's ruling, but without prejudice to defendant refiling his motion if he can produce evidence that contradicts factual findings that the Family Part relied upon in denying his motion or if he can show additional changed circumstances.
The facts relevant to defendant's application were developed through the written submissions of the parties and arguments of counsel. The parties were married in 1970 and had no children. In 1986, they were living separately, and their divorce case was pending. Plaintiff wife filed a complaint seeking a restraining order. After a hearing, a Family Part judge entered a final restraining order against defendant husband on September 10, 1986. The order barred defendant from plaintiff's residence, from any contact with her, and from harassing plaintiff or any of her relatives.
The restraining order was incorporated into the parties' final judgment of divorce dated June 10, 1987. The divorce judgment also stated the terms of the parties' marital settlement agreement, by which they divided their marital property and defendant was granted a last opportunity to retrieve his remaining personal belongings from the marital home. Both parties waived any claim to alimony then or in the future.
After the divorce, the parties continued to live near each other. Over the next eight years, defendant mailed approximately ten greeting cards and notes to plaintiff, and she may have responded on one occasion with a greeting card to him. The cards and notes contained nothing overtly threatening or harassing. Plaintiff states she complained to the police about receiving the communications, but she had no documentary record of police involvement. No charges were ever filed against defendant for violating the restraining order. Defendant did not attempt any other form of contact, and none whatsoever occurred after 1995.
In 2006, defendant filed a motion to dissolve the final restraining order. In a certification supporting his motion, defendant stated that he wanted to obtain a firearms purchaser card so that he may hunt. He declared that he had not violated the restraining order, he had no criminal convictions, and he did not intend to contact plaintiff. His application was denied on June 23, 2006, by a different Family Part judge from the one who had entered the restraining order twenty years earlier.
In September 2010, defendant filed another motion to dissolve the restraining order. In support of the second motion, defendant again certified that he had not violated the restraining order during its almost quarter-century in existence and that he did not intend to contact plaintiff. He stated he had voluntarily surrendered his weapon when he learned that the 1986 restraining order was still in effect. Apparently addressing a reason for denial of his 2006 motion, defendant stated that a transcript of the 1986 hearing could not be obtained. As a substitute, he described the allegations of plaintiff's domestic violence complaint filed in 1986.
Plaintiff "strenuously" opposed the renewed motion. She filed a certification in which she alleged that defendant intimidated, degraded, and controlled her during the marriage and committed serious acts of domestic violence, especially after their separation. His conduct included screaming at her and pinning her against a wall. After they separated in 1986, he sneaked into the marital home at night and frightened her severely. He drove his pickup truck perilously close to her while she was driving, and she believed he tampered mechanically with her car and broke its windows. She stated that defendant owned about fifty guns at the time of the divorce, and that she was concerned because of his volatile temper and obsession with guns. She claimed that she continued to be "deathly afraid of the defendant" and that she had "developed a nervous tic" as a result of his recent applications to dissolve the restraining order.
The motion was heard by yet a different Family Part judge from the previous ones. After reviewing the submissions and hearing argument by counsel, the judge applied the relevant factors discussed in Carfagno v. Carfagno, 288 N.J. Super. 424, 435-42 (Ch. Div. 1995), and concluded that defendant's motion would be denied.
The judge recognized that the parties were now in their sixties and that no violation of the restraining order had been adjudicated in the twenty-four years since its entry. Nevertheless, he stated that defendant had shown "disregard of the judicial process and judicial orders" by sending greeting cards and notes to plaintiff. The judge was concerned that the parties lived very close to each other and that defendant had attempted to establish contact with plaintiff's brother near the time that he filed his motion. Most significantly, the judge found that defendant had shown "almost a pathologic need to control" plaintiff during the marriage, and he noted that defendant had not sought counseling after ...