June 20, 2013
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 18, 2013
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cape May County, Docket No. FV-05-0549-09.
Evan F. Nappen, PC, attorneys for appellant (Richard V. Gilbert, on the brief).
A.M., respondent pro se.
Before Judges Graves and Guadagno.
Defendant J.S.V. appeals from the March 30, 2012 order of the Family Part denying his motion to vacate a final restraining order entered on June 1, 2009, in favor of plaintiff A.M. We affirm.
Plaintiff and defendant were involved in a dating relationship that lasted approximately three-and-one-half years. For most of their relationship, the parties lived together, residing initially at defendant's parents' house and thereafter, at defendant's grandparents' house. At the time of the incident, defendant was working as a corrections officer at Bayside State Prison and plaintiff worked for a real estate agency.
On May 18, 2009, defendant told plaintiff that he wanted to end their relationship. Plaintiff was upset because she wanted the relationship to continue. Later that day, the parties had an argument. When plaintiff reminded defendant that he owed her money, he told her that she would get the money the following day. Defendant then got up, slammed the door, and told plaintiff that he was going to kill her. Plaintiff reported the incident to the police and obtained a temporary restraining order.
At a trial held on June 1, 2009, plaintiff testified to the May 18, 2009 incident as well as to numerous prior acts of domestic violence, dating back to 2005. Defendant testified and admitted telling plaintiff he was going to kill her, but claimed he was "frustrated" and "it was a stupid thing to say."
The court found that defendant's statement constituted harassment, given "the context of [the parties'] prior history." The judge found plaintiff's testimony concerning the prior acts of domestic violence to be credible because of "the level of detail" she provided and determined that defendant's "bald denial[s]" failed to "carry the day." The court concluded:
given [the] prior history . . . the alleged incident of the 18th, even assuming that he slammed the door first and yelled I should kill you, or I'm going to kill you, in my view does qualify as an act of harassment and it warrants the entry of a [f]inal [r]estraining [o]rder.
The judge entered a final restraining order (FRO). Defendant did not appeal.
On June 12, 2009, defendant moved to modify the FRO to allow him to possess a firearm while at work with the Department of Corrections, pursuant to N.J.S.A. 2C:25-29(b). At that time, defendant was a probationary employee and had been advised that his employment would be terminated if he was not allowed to possess a firearm at work. Plaintiff opposed the motion. The Cape May County Prosecutor's Office expressed the State's position that defendant was "prohibited from possessing a firearm" until a report and recommendation from the New Jersey State Police, Special Investigation Division, was received.
On July 24, 2009, the court denied defendant's motion, finding the request "moot" in the absence of the Special Investigation Division's report and recommendation.
On February 2, 2012, defendant moved to vacate the FRO. In support of his motion, defendant certified that he was in good health, had not violated the terms of the FRO, had successfully completed the court-ordered domestic violence counseling, had no pending criminal domestic violence charges against him, had no substance abuse issues, and that there was no current relationship between the parties.
Plaintiff opposed the motion, claiming she was still fearful of defendant. Although plaintiff did not allege any contact by defendant, she mentioned incidents involving his family members. In 2009, plaintiff began training for a position with the Department of Corrections. She was assigned to Southern State Prison, where defendant's father worked as a corrections officer. During this time, she claimed that she was "harassed by guards who are friendly with the defendant or his father." She also claimed that she was transferred from Southern State Prison so she would not be working in the same facility as defendant's father.
Plaintiff also claimed that defendant's grandmother approached her in a supermarket in December 2011 and began to talk about defendant, which put plaintiff in "great fear." Plaintiff argued that although "there is no formal relationship" between the parties presently, "the continued employment of defendant's father in the Department of Corrections where plaintiff works is troubling."
[P]laintiff and defendant are no longer dating and reside separately. Now that the relationship is over, the flash points that caused the disagreements no longer exist. . . . [T]here is no reason to believe any new conflict would occur and it is not reasonable to believe that this plaintiff should objectively or legitimately fear this defendant.
[Plaintiff's] alleged fear is not grounded in any actions or statements by the [d]efendant since the entry of the restraining order. Rather, [plaintiff] only alleges interaction with her by third parties.
On March 30, 2012, the trial court denied defendant's motion without a hearing. The judge 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 435.]
The court concluded
[d]efendant's motion considers each of these factors in their attempt to vacate the order. However, the [c]ourt notes that factor number 2, whether the victim fears the defendant, is of great importance in relation to the other factors. The [p]laintiff strongly objects to dismissal of the final restraining order and has hired counsel to express that objection. As such, the [c]ourt will not vacate the [f]inal [r]estraining [o]rder.
On May 24, 2012, the trial court issued an amplification of its prior decision, pursuant to Rule 2:5-1(b):
A review of the file indicates that the parties at the time of the final restraining order lived in close proximity. That does not appear to have changed. Additionally, it appears as if a family member of the defendant's works with the plaintiff. Given all of those circumstances I was and am of the view that the defendant has failed to establish the necessary good cause to warrant the dismissal of the restraining order.
Our task in reviewing a trial court's domestic violence decision "is not to reweigh the evidence but to determine if sufficient evidence exists" to support the decision. Roe v. Roe, 253 N.J.Super. 418, 431 (App. Div. 1992). Our appellate function is a limited one. We will not disturb the factual findings and legal conclusions of the trial judge "unless they are so wholly insupportable as to result in a denial of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). It is "improper for the Appellate Division to engage in an independent assessment of the evidence as if it were the court of first instance." State v. Locurto, 157 N.J. 463, 471 (1999). This deferential standard "is especially appropriate when the evidence is largely testimonial and involves questions of credibility." In re Return of Weapons to J.W.D., 149 N.J. 108, 117 (1997) (citing Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989)).
Moreover, a greater degree of deference is to be accorded to the Family Part as it possesses "special jurisdiction and expertise, " and the Appellate Division "should accord deference to family court factfinding." Cesare v. Cesare, 154 N.J. 394, 413 (1998); see Brennan v. Orban, 145 N.J. 282, 304 (1996) (recognizing that the Legislature "reposed grave responsibilities on Family Part judges to ensure the safety and well-being of women and children in our society").
Relief from an FRO is governed by N.J.S.A. 2C:25-29(d), which requires a showing of good cause. In Kanaszka v. Kunen, 313 N.J.Super. 600, 607-08 (App. Div. 1998), we adopted the eleven Carfagno factors the trial court should consider when determining whether good cause has been shown. When considering factor two, whether the victim fears the defendant, the court must look at objective fear, not subjective fear. Carfagno, supra, 288 N.J.Super. at 437-38. "Objective fear is that fear which a reasonable victim similarly situated would have under the circumstances." Id. at 437. "[T]he previous history of domestic violence between the parties must be fully explored and considered to understand the totality of the circumstances of the relationship and to fully evaluate the reasonableness of the victim's continued fear of the perpetrator." Kanaszka, supra, 313 N.J.Super. at 607.
The "inquiry into the history of the relationship and prior acts of domestic violence become important to consider in evaluating the necessity for continued protection." Id. at 608. However, "[t]he linchpin in any motion addressed to dismissal of a final restraining order should be whether there have been substantial changed circumstances since its entry that constitute good cause for consideration of dismissal." Id. at 609.
Applying these principles, we are satisfied that the trial court properly denied defendant's motion to vacate the FRO. The judge's factual analysis reveals he considered all of the Carfagno factors, including whether plaintiff objectively fears defendant, and concluded that defendant failed to demonstrate a substantial change in circumstances and good cause for vacating the FRO. The judge also correctly concluded the parties' history of domestic violence and the totality of circumstances established the objective reasonableness of plaintiff's continued fear of defendant. We agree that the history of domestic violence in this case is compelling and causes plaintiff to remain afraid that defendant will harm her. Given this history, plaintiff's fear is objectively reasonable.