To dissolve domestic violence fro remanded for plenary hearing

To dissolve domestic violence fro remanded for plenary hearing

APPELLATE DIVISION

DOCKET NO. A-5202-09T3

M.S., n/k/a M.W.,

Plaintiff-Respondent,

v.

S.S.,

Defendant-Appellant.

_________________________________

Submitted March 21, 2011 - Decided

Before Judges Lisa and Sabatino.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Union County, Docket No. FV-20-2426-94.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

Jef Henninger, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

In this unopposed appeal, defendant S.S. seeks to reverse

the Family Part's denial of his motion pursuant to N.J.S.A.

2C:25-29(d) and Rule 4:50-1 to vacate a final restraining order

("FRO") issued against him under the Prevention of Domestic

Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"). The

FRO was obtained by defendant's former wife, plaintiff M.S. (who

now has the initials M.W.), after a hearing in 1994. The FRO

March 29, 2011

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was based on a finding that defendant had harassed plaintiff by

making threatening statements to her.

At the time the court granted the FRO seventeen years ago,

the parties were still husband and wife in a tumultuous

marriage. The trial court was particularly concerned about

allowing defendant, after he had committed harassment, back into

the marital household where the parties' two minor children were

living. In his bench opinion explaining why the FRO was then

warranted, the trial judge stated that the parties should not

continue to "be in the same place at the same time in residences

together . . . if only because the children have parents [who]

are now totally at war with each other." The trial judge

perceived that the marital residence was "not a safe place, such

that either one of the parties might in fact antagonize [the

other] by serious gestures."

Shortly after the FRO was issued, the parties divorced.

The older child is now in college and the younger child is being

home schooled by plaintiff. Therefore, the parties still need

to communicate with one another, on a very limited basis, on

matters such as child support, medical expenses, and financial

contributions for college.

Since the time FRO was issued in 1994, defendant tried,

unsuccessfully, on four other occasions through April 2002, to

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have the FRO lifted. He contends that the persisting existence

of the FRO has caused him problems at work, and that it has

created an impediment to developing a positive relationship with

his children.

Defendant filed his most recent motion to vacate the

restraints in April 2010. In support of his application,

defendant provided an expert report from a licensed

psychologist. The expert met with defendant five times,

including two clinical interviews. The expert also administered

the MMPI personality test.

According to the psychologist, defendant suffers from

anxiety and feelings of persecution, and defendant feels

socially alienated and professionally defeated. Despite these

problems, the expert concluded that the defendant's personality

style is inconsistent with a person capable of, or inclined to,

violence. The expert found significant that defendant, at least

by his own account, has exhibited no acts of violence, impulse

control, or other behavior in violation of the FRO since its

entry in 1994. Consequently, the expert opined in his report

that defendant poses "no conceivable danger to others," and

therefore "there is no rational basis for any person to be

protected from him."

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In her opposition papers on the motion, in which she was

then represented by counsel, plaintiff submitted a certification

from herself and also from the parties' daughter. Plaintiff

contended that she remains in fear of defendant, asserting that,

contrary to his denials, he has indeed continued to act in a

hostile and belligerent fashion towards her and the children.

The daughter's certification attached a lengthy letter in

which the daughter described how her father has acted

aggressively since the FRO was issued, and why she continues to

be in fear of him. Among other things, she recounted an

incident in October 2008, in which defendant allegedly became

enraged and tried to suffocate her with a towel and to attack

her brother.

Defendant, in a reply certification, denied that he had

attacked either of his children. He maintained that his son is

the one who became violent, after being told by defendant to get

off the computer.

After considering the competing certifications, the motion

judge1 declined to vacate the FRO. However, in his oral opinion,

the judge noted that he was denying the defendant's application

"by the slimmest of margins."

1 The motion judge is a different judge than the one who tried

the case and issued the FRO in 1994.

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This appeal by defendant followed. He argues that the

motion judge erred in declining to vacate the FRO. He contends

that there is no longer a necessity for restraints, and that the

judge was unduly swayed by plaintiff's opposing papers in the

absence of any cross-examination. Defendant argues that, at a

minimum, the case should be remanded for a plenary hearing to

develop the proofs with appropriate credibility findings, so

that the trial court can reexamine his motion in light of those

proofs and the applicable legal standards.

The Act is designed to "assure the victims of domestic

violence the maximum protection from abuse the law can provide."

N.J.S.A. 2C:25-18. In doing so, however, "[t]he Legislature

intended to protect the victims ⎯ not to punish the person who

committed the act of domestic violence." Carfagno v. Carfagno,

288 N.J. Super. 424, 434 (Ch. Div. 1995). As part of these

offsetting policy considerations, the Legislature included a

specific provision in the Act, N.J.S.A. 2C:25-29(d), which

authorizes a court to dissolve or modify a restraining order

"upon good cause shown." Carfagno, supra, 288 N.J. Super. at

433 (citing N.J.S.A. 2C:25-29(d)); see also Kanaszka v. Kunen,

313 N.J. Super. 600, 608 (App. Div. 1998).

Carfagno delineated eleven factors for courts to consider

in evaluating whether "good cause" to vacate restraining order

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has been demonstrated: (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

use; (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 435-42.

After conducting a plenary hearing at which both parties

testified, id. at 432, the judge in Carfagno applied these

eleven factors to the proofs adduced at the hearing, and denied

the defendant's motion to vacate. Id. at 442. In the course of

his analysis, the judge assessed, among other things, the

credibility and objective reasonableness of the plaintiff's

assertion that she remained in fear of the defendant three years

after the FRO had been issued. Id. at 436-38.

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Our court has since approved and applied the eleven

decisional criteria expressed in Carfagno. See, e.g., Kanaszka,

supra, 313 N.J. Super. at 607 (adopting the eleven-factor

Carfagno analysis); Sweeney v. Honachefsky, 313 N.J. Super. 443,

447 (App. Div. 1998) (same). When courts apply and weigh these

criteria, "the 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

(emphasis added).

To warrant a plenary hearing on the motion to vacate, such

as the one conducted in Carfagno, a defendant must make "a prima

facie showing [that] good cause exists for dissolution of the

restraining order." Kanaszka, supra, 313 N.J. Super. at 608.

"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.

This approach is consistent with general judicial precepts

that disputed material issues of fact should not be resolved on

the basis of conflicting written submissions. See Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)

(delineating the standards for summary judgment); see also

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Conforti v. Guliadis, 128 N.J. 318, 322 (1992) (requiring

plenary hearings to resolve material factual disputes in the

Family Part); Barrie v. Barrie, 154 N.J. Super. 301, 303 (App.

Div. 1977), certif. denied, 75 N.J. 601 (1978). In such a

proceeding, the judge will have a chance to assess the

credibility of the movant's assertions, as tested through the

rigors of cross-examination.

We are satisfied that such a plenary hearing is warranted

in the present case. The assertions made by defendant in his

moving papers, as amplified by the expert opinions of the

psychologist, were sufficient to provide prima facie support to

dissolve the FRO for good cause under N.J.S.A. 2C:25-29(d). The

material facts as to the ongoing need for restraints were

sharply disputed in the submissions from plaintiff and the

daughter. In turn, plaintiff refuted those counter-assertions

in his reply certification.

As the motion judge candidly observed, he denied

defendant's motion "by the slimmest of margins." Given the

closeness of the issues, we believe that it is most prudent, and

most consistent with the governing legal principles, to remand

for a plenary hearing. In doing so, we do not intimate what the

outcome of that hearing should be. We merely hold that an

evidentiary hearing is in order before a final decision is made.

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Remanded for a plenary hearing. We do not retain

jurisdiction.