November 1, 2017
appeal from Superior Court of New Jersey, Chancery Division,
Family Part, Morris County, Docket No. FV-14-0182-05.
M. Resnick argued the cause for appellant (Ziegler &
Zemsky, LLC, attorneys; Steven M. Resnick, on the brief).
A. Bernstein argued the cause for respondent.
Judges Fuentes, Manahan, and Suter.
appeals the May 6, 2016 order that denied her request to
vacate a final restraining order (FRO) entered in 2004 under
the Prevention of Domestic Violence Act (the Act), N.J.S.A.
2C:25-17 to -35, and the June 10, 2016 order that denied
reconsideration. Defendant's motion to dissolve the FRO
was denied because it did not include a transcript of the
underlying 2 004 FRO hearing, even though the audio record of
that proceeding apparently is not capable of transcription.
We reverse and remand for the Family Part to verify the
unavailability of the audio record of the FRO hearing, to
determine whether defendant has shown prima facie evidence of
changed circumstances to dissolve the FRO, and unless she has
not met this burden, to reconstruct the record of the FRO
hearing consistent with the procedures of this opinion.
parties divorced in March 2004 after a ten-year marriage. Of
their three children, one is emancipated, one is in college
and one is a teenager, who resides with defendant. Plaintiff
moved to Florida and remarried in 2014.
August 2004, plaintiff obtained a temporary restraining order
(TRO) under the Act against defendant, alleging as a
predicate offense that defendant was harassing
Plaintiff's complaint stated that defendant made
"repeated calls to [plaintiff] and others" that
were "harassing and threatening, " causing him
fear. She repeatedly called plaintiff's girlfriend.
also claimed, in the original request for a restraining
order, that defendant had a history of committing acts of
domestic violence against him. He accused defendant of coming
into the house and taking items belonging to the children;
asserting in vulgar language her claim to ownership of the
house; demanding that plaintiff move into the laundry room;
stabbing him in the arm; running after him with two butcher
knives; locking him out of the house in cold weather when he
was scheduled for tests on his heart; keeping him up by
flashing lights; chasing and hitting him with a battery
charger while disparaging him with coarse language;
threatening to run her car off the road while he was a
passenger; hitting him in the head with a tripod; locking him
out of the house with the cat; and kicking him in the ribs,
legs, and chest, spitting in his face, and calling him a
"f**king loser" and "piece of s**t."
entered on August 18, 2004 by Judge John B.
Danglerprovided that defendant committed "an
act of domestic violence." It restrained defendant from
contacting plaintiff's girlfriend, her employer, and
plaintiff's brother and sister-in-law. Her communication
with plaintiff was to be limited to non-harassing/non-abusive
parenting issues concerning the children. The court also
ordered defendant to have a mental health assessment.
Defendant did not appeal the FRO.
March 2016, defendant made application pursuant to N.J.S.A.
2C:25-29(d) to dissolve the FRO, alleging a "substantial
change of circumstances" since its entry nearly twelve
years earlier in 2004. In her supporting certification,
defendant alleged the FRO should be dissolved to permit the
parties to mediate a new parenting time schedule. She alleged
the FRO posed a hardship to her in obtaining other
employment. Other changed circumstances since 2004 included
plaintiff's move to Florida and the support of his former
girlfriend to vacate the FRO.
claimed that plaintiff no longer feared her. She alleged that
in 2006, they shared a hotel room for a week with their
children while at a tournament in Florida. They also entered
into a real estate joint venture. According to defendant,
plaintiff attended her fortieth birthday party in 2008 at his
restaurant, and he stayed with the children and her parents
in Hilton Head. She claimed he made sexual advances to her.
With respect to his current wife, defendant claims they
communicated cordially at least until 2014 and 2015 when
defendant filed post-judgment matrimonial orders to show
cause, accusing plaintiff of taking their teenaged son to
Florida for spring break and not timely returning him.
application to dissolve the FRO did not include the
transcript of the 2004 FRO hearing. By way of explanation,
defendant attached a copy of an e-mail from the Morris County
Superior Court Operations Division that stated, "neither
tape is working, so there is nothing for you to listen
to." A later e-mail reported that "it was
discovered that one of the tapes was blank, " but there
was a second half with the judge's decision. A May 4,
2016 certification from a tape transcript processing employee
in the Morris County vicinage stated that the audio tapes of
the 2004 FRO hearing were blank.
"strongly" opposed the dissolution of the FRO and
filed a cross-motion for attorney's fees. In his
certification, plaintiff alleged defendant was "violent,
irrational, and mentally unstable." He remained
"extremely fearful of [her] and very concerned about
[his] safety and security" should the FRO be dissolved.
He denied sharing a hotel room with defendant and the
children, hosting a birthday party for her, staying at Hilton
Head with her parents, or making sexual advances. He
emphasized that the real estate investment in 2006 was
conducted through an attorney. Plaintiff claimed that in
2014, defendant called the former spouse of his current wife
(Rhonda) and made spurious accusations concerning his
interactions with the children and his relationship with
Rhonda. Plaintiff also rejected any proposal to mediate
parenting time issues. The parties had been in court in 2014,
2015 and 2016 on multiple post-judgment matrimonial motions
concerning parenting time with their teenaged son and other
order dated May 6, 2016, the Family Part denied
defendant's application to dissolve the FRO because it
did not include a copy of the 2004 FRO hearing transcript.
The court based its ruling on the plain language in N.J.S.A.
2C:25-29(d), which requires a "complete record of the
hearing" before dissolving or modifying any final order.
The Family Part also expressly relied on this court's
decision in Kanaszka v. Kunen, 313 N.J.Super. 600
(App. Div. 1998), which held:
In cases where the motion judge did not enter the final
restraining order, we hold 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 ...