Final Restraining order in DV can be dissolved KM v GERBASIO

K.M.,

Plaintiff-Respondent,

v. ANTHONY GERBASIO,

Defendant-Appellant.

_____________________________________

November 14, 2014

Submitted October 22, 2014 – Decided

Before Judges Waugh and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-1007-07.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PER CURIAM

Defendant Anthony Gerbasio appeals the Family Part's August 26, 2013 order denying his motion to dissolve the 2007 final restraining order (FRO) entered in favor of plaintiff K.G. (Karen).¹ Because we conclude that the motion judge applied the wrong legal standard, we reverse the order on appeal and remand for further consideration consistent with this opinion.

We discern the following facts and procedural history from the record on appeal. In 2006 and 2007, Gerbasio and Karen had a dating relationship. On April 16, 2007, the Family Part granted Karen's second application for an FRO. The application was premised on allegations of harassment. N.J.S.A. 2C:33-4(a).

In May 2013, Gerbasio filed a motion to dissolve the FRO. According to Gerbasio, he and Karen have had no contact for over six years. Karen has relocated to Florida. Gerbasio continues to reside in New Jersey, and has married. Gerbasio contends that the existence of the FRO makes travel difficult for him and his wife. He was never charged with violating the FRO and no other restraining orders have been entered against him.

The motion judge held a plenary hearing at which both parties testified. Karen opposed the motion, based on her fear that Gerbasio would attempt to contact her again. She asserted that she became engaged just prior to Gerbasio's motion and that she was considering returning to New Jersey. The judge denied the motion, explaining that he did so "reluctantly." He based his denial on Karen's fear that Gerbasio would try to contact her again if the FRO were to be dissolved. The judge stated that he believed Karen objected in good faith and that he weighed her objection "fairly heavily based upon her subjective concerns." This appeal followed.

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quotingManalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

In Kanaszka v. Kunen, 313 N.J. Super. 600, 607-08 (App. Div. 1998), we adopted the eleven Carfagnofactors the trial court should consider when determining whether good cause has been shown:

(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 v. Carfagno, 288 N.J. Super. 424, 434-35 (Ch. Div. 1995).]

"[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." 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. Conclusory allegations should be disregarded." Ibid. (citing Lepis v. Lepis, 83 N.J. 139, 159 (1980).

When considering Carfagno factor two, whether the victim fears the defendant, the judge 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.

Gerbasio satisfied his obligation to make a prima facie showing that good cause existed for dissolution of the FRO, including his marriage and an extended period without contact between him and Karen. Although Karen's opposition was based on fear, which is the second Carfagno factor, the judge's reliance on that factor was based on Karen's subjective concern rather than objective fear, which is "that fear which a reasonable victim similarly situated would have under the circumstances." Carfagno, supra, 288 N.J. Super. at 437. Our reading of the record suggests that the judge might not have been disposed to deny Gerbasio's motion had he applied the objective standard as required by Kanaszka.

Consequently, we remand to the motion judge, who actually heard and observed the parties testify, Cesare,supra, 154 N.J. at 412, for reconsideration using the objective analysis required by Kanaszka and Carfagno. We do not retain jurisdiction.

Reversed and remanded.

1  We use a pseudonym for the plaintiff for the sake of clarity and confidentiality.

2015 update Wills and Estate Planning- Free Seminar Wednesday Jan 14

Did you get divorced or separated in 2014? Remender to update your estate planning

2015 update Wills and Estate Planning- Free Seminar                                  

Wednesday Jan 14          12:15-1:00 PM and again

  5:15pm-6pm

Law Office of Kenneth Vercammen, 2053 Woodbridge Ave, Edison, NJ 08817

COST: Free if you pre-register by email. Complimentary materials provided at 12:00 sharp. We previously held this seminar for the Metuchen and Edison Adult schools. This program is limited to 15 people. Please bring a canned food donation, which will be given to the St. James Food Bank located on Woodbridge Avenue in Edison, NJ. Please email us if you plan on attending or if you would like us to email the materials.

SPEAKER: Kenneth Vercammen, Esq.

                 (Author- Answers to Questions About Probate)

The new NJ Probate Law made a number of substantial changes in Probate and the administration of estates and trusts in New Jersey.

Main Topics:

1. The New Probate Law and preparation of Wills                

2. 2014 changes in Federal Estate and Gift Tax exemption

3. NJ Inheritance tax $675,000

4. Power of Attorney                       

5.  Living Will                                           

6.  Administering the Estate/ Probate/Surrogate               

7.  Question and Answer                   

       COMPLIMENTARY MATERIAL: Brochures on Wills, "Answers to Questions about Probate" and Administration of an Estate, Power of Attorney,  Living Wills, Real Estate Sales for Seniors, and Trusts.

       Co-Sponsor: Middlesex County Estate Planning Council

To attend or for Information: Mike McDonald 732-572-0500

or email VercammenLaw@Njlaws.com

Can’t attend?  We can email you materials

Send email to VercammenLaw@Njlaws.com

10 Estate Planning Ideas for Divorced Persons

         By Kenneth A. Vercammen, Esq

         There may come a time when a parent is unable, due to physical or mental incapacity, to take care of her minor children. If a parent dies, the minor children will need a guardian. In these circumstances, those caring for the children, as well as the courts will need direction. By writing and executing a Will, which includes instructions on guardianship one may select someone, either individually or jointly, with the legal authority to act for minor children and assume control over the assets of the children. Estate planning, which includes the execution of a Will, is just as important for moms with minor children as they are for senior citizens.

Where there’s No Will …

    If you do not write a Will, the State has already written one for you. Your assets go to whoever a state law says receives the assets, or to the government itself!  A Will should be a statement to the things you truly care about: your children, your parents, your friends, your Church and charities.  You can consider remembering your church or school.

         As average Americans, we work 80,000 hours in a lifetime, or 45 to 55 years.  In spite of all our resources and the assets we earn during our lifetime, the vast majority of Americans do not take the time to create the legal instructions to guide the court or a guardian upon their death. National statistics indicate that more than 50% of Americans die without leaving a Will . In the absence of a Will  or other legal arrangement to distribute property at death, the State must step in to administer the estate and decide who gets custody of your children and handles your money. This process is called the law of intestacy. The result can be lengthy delays in the distribution of your estate, court battles between relatives and your children being raised by someone you do not favor. Without a Will, your family will have to pay substantial costs for accountants, attorneys, bonding companies and probate fees.

If You Have No Will:                                           

          

         If you leave no Will or your Will is declared invalid because it was improperly prepared or is not admissible to probate:

1. People you dislike or people who dislike and ignore you may get some of your assets.

2. State law determines who gets assets, not you

3. Additional expenses will be incurred and extra work will be required to qualify an administrator-Surety Bond, additional costs and legal fees

4. You Lose the opportunity to try to reduce Estate Tax, State inheritance taxes and Federal estate taxes

5. A Judge determines who gets custody of children. A greedy brother or crazy mother in law could ask the court for custody.

6. It probably will cause fights and lawsuits within your family

7. The procedure to distribute assets becomes more complicated

8. The father of your children may try to control the assets of your children and not properly spend the money

         In planning, make sure your assets go to your loved ones or favorite charity, not an "ex". Therefore, you may wish to do the following:

1)  Have an Elder Law attorney prepare a Will to distribute your assets to the people you care about the most. If you already have a Will, prepare a new Will and have the old Will revoked. (Your estate planning attorney will explain this to you.)

2)  Prepare a Power of Attorney to select someone to handle your finances if you become disabled. Have your old power of attorney revoked.

3)  Select the correct beneficiary on assets you may own, such as stocks, bank accounts, IRA, and other financial assets.

4)  Change your beneficiary under your own life insurance, whether whole life insurance or term insurance.

5)  Contact your employer's human resources and change the beneficiary on life insurance, pension, stock options or other employee benefits. Note that if you are not yet divorced, your spouse may have to sign a written waiver permitting you to change beneficiaries.

6)  If you are not divorced or separated from the father, keep your personal papers at a location where an ex-spouse or the child's parent can't destroy them. 

7)  If you have minor children, nominate someone under a Will to serve as guardian to the children. Although the surviving parent obviously has first right of custody of children, they may not even want custody.

8)  Make sure the trustee for any funds designated for your children is the "right" trustee.

9)  Have your attorney prepare a prenuptial agreement, if you decide to get married, so your children can inherit your assets. ) If you get married, have a formal prenuptial agreement prepared by an attorney so your children, not new spouse, receives your assets if you pass away.

10)  In New Jersey, if you are still married and living with a spouse, under certain instances the surviving spouse has a right to "elect against the will". The disinherited spouse may like to elect against the Will and try to obtain one  third of the estate. Your attorney can explain how you can protect yourself and your children.           

ESTATE PLANNING TO PROTECT YOUR CHILDREN

Guardians

     Most individuals appoint the parent to act as Guardian of the person and property of their minor children.  It is suggested that your Will include a clause which provides that in the event the father predeceases you, or is unsuitable or ceases to act as Guardian of the person and property of your minor children, you appoint a trusted family member or close friend to act as successor Guardian of the person and property of your minor children.

Trustee

     Select a trusted person, a close relative or friends, who will invest and hold your children's money. In your Will you can instruct the Trustee to apply amounts of income and principal as they, in their sole discretion, deem proper for the health, maintenance, education, welfare, or support of your children or other minors. Direct that the trustee shall accumulate any income not needed for the above purposes, paying and transferring the portion held in trust to the beneficiary upon his or her attaining the age of majority or whichever age you select. 

 Children born after you sign the Will

        Many people direct that the provisions of their Will also applies to  afterborn children. Accordingly, if you have any additional children subsequent to the execution of this Will, then wherever you have designated only your named children, you intend that all of your children shall share equally in the relevant provisions of your  Will.

       In addition to having a formal Last Will and Testament individuals  are encouraged to have a Power of Attorney and also Living Will. Moreover, we also recommend they plan ahead and write messages to their family and anticipated executor detailing their specific desires regarding funeral and burial. Written instructions to your family and executor containing information and guidance will minimize uncertainty, confusion, and possible oversights following your death.

     Conclusion

        While the preceding article contains possible items to be discussed with your family, attorney  and executor, the article is by no means exhaustive.  A number of these items may not be applicable in your situation, and probably there are many others that are applicable.  The essential element is to spend some time now considering what you should tell those most closely associated with you to facilitate their handling of your affairs upon your death.

    About the Author:        

         Kenneth Vercammen is a Litigation Attorney in Edison, NJ, approximately 19 miles north of Princeton.  He often lectures for the American Bar Association and New Jersey State Bar Association on personal injury, criminal / municipal court law and practices to improve service to clients. He has published 125 articles in national and New Jersey publications on legal topics. He has served as a Special Acting Prosecutor in seven different cities and towns in New Jersey. He has spoken on Wills and Elder law on numerous occasions to the Adult Community Schools in Metuchen, Sayreville, Old Bridge, South Brunswick and Edison/Clara Barton Seniors and Perth Amboy Seniors.

         In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters.  He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, arbitration hearings and contested  hearings.

         He is also a popular speaker for the American Bar Association's General Practice Section and Law Practice Management Section.

         Since 1985, his primary concentration has been on litigation matters.  Mr. Vercammen gained other legal experiences as the Confidential Law Clerk to the Court of Appeals of Maryland (Supreme Court), with the Delaware County, PA District Attorney Office handling Probable Cause Hearings, Middlesex County Probation Dept as a Probation Officer, and an Executive Assistant to Scranton District Magistrate, Thomas Hart, in Scranton, PA.

Call our office to schedule a confidential appointment 732-572-0500

KENNETH  VERCAMMEN & ASSOCIATES, PC

ATTORNEY AT LAW

2053 Woodbridge Ave.

Edison, NJ 08817

(Phone) 732-572-0500

 (Fax)    732-572-0030

website: www.njlaws.com

Motion to vacate a Domestic Violence Restraining Order

Motion to vacate a Domestic Violence Restraining Order is based on NJ statute "2C:25-29" d.

Upon good cause shown, any final order may be dissolved or modified upon application to the Family Part of the Chancery Division of the Superior Court, 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.

11 FACTORS TO BE CONSIDERED IN DETERMINING WHETHER DEFENDANT HAS ESTABLISHED GOOD CAUSE to lift a domestic violence restraining order based on Carafagno v. Carafagno, 288 N.J. Super. 424 (1995)

1. Consent of Victim to Lift the Order

The first factor is whether the victim consents to dissolve the final restraining order. Where the victim has consented to lifting the restraining order and the court finds that the victim is doing so voluntarily, the court should dissolve the order without further consideration or analysis.

The Legislature intended that the courts should follow the victim's request to dissolve a domestic violence order or dismiss a domestic violence complaint without further legal analysis. When construing a statute, the court must follow the legislative intent, considering the policy underlying the statute. Lesniak v. Budzash, 133 N.J. 1, 8, 626 A.2d 1073 (1993). "A statute is not to be given an arbitrary construction ... but rather one that will advance the sense and meaning fairly deducible from the context." Id. at 14, 626 A.2d 1073.

436

*436 The policy of the Act is to provide broad protection for the victim. N.J.S.A. 2C:25-18. The court notes that the Legislature provided that a restraining order would be a civil remedy, N.J.S.A. 2C:25-18 (legislative declarations) and that the victim — not the state — files the complaint to obtain the restraining order, N.J.S.A. 2C:25-23 (victims to be notified of their rights to file a civil complaint for a restraining order); N.J.S.A. 2C:25-28(a) (procedures for the victim to file a civil complaint). Thus, when looking at the entire Act, the court concludes that the Legislature intended to provide broad protection to the victim.

If judges disregard the victim's wishes in determining whether to dismiss a complaint or dissolve a restraining order on the victim's request, this has the effect of discouraging victims from filing complaints when necessary. If the victim perceives that the courts would not be responsive to their request to dismiss the action, that victim or other victims may refrain from filing a domestic violence complaint in the future. Certainly, this is not what the Legislature intended. Thus, if the victim voluntarily requests the court to dismiss a domestic violence action or dissolve a restraining order, the court should grant the request without conducting any further legal analysis.

Here, Ms. Carfagno has not consented to dissolving the final restraining order. Thus, this factor points to continuing the restraining order.

2. The Victim's Fear of the Defendant

The Act protects victims from physical harm. Yet, physical safety is not all that the Legislature intended to protect. Recognizing that domestic violence occurs in a relationship where one party asserts power and control over the other, the victim is also protected from mental or emotional harm.

Fear of the defendant is the center of the cycle of power and control existing in domestic violence situations. Restraining orders have the effect of empowering the victim to stand up to the defendant. Thus, fear is important to consider.

437

*437 Fear of the defendant is especially important when the parties share children. In domestic violence cases involving children, the victim usually has custody of the children. See N.J.S.A. 2C:25-29(b)(11) (presumption that victim shall have custody of the children). It is also presumed that the custodial parent will act in the best interests of the children. Gubernat v. Deremer, 140 N.J. 120, 142, 657 A.2d 856 (1995). However, where the victim has continual fear of the defendant, the defendant's perceived control over the victim may attenuate the victim's ability to act in the best interests of the children. Moreover, fear might attenuate the ability of the victim to act in his or her own best interests. Accordingly, it is important to consider the victim's fear of the defendant.

A question remains whether the court should focus on subjective fear or objective fear. Subjective fear is the fear produced by and within the mind of the victim as the victim understands and communicates it. Objective fear is that fear which a reasonable victim similarly situated would have under the circumstances. The court holds that courts should focus on objective fear. The Legislature intended the courts to consider objective — not subjective — fear. Courts should not construe a statute in a manner that would leave a portion of the statute inoperative. State v. Reynolds, 124 N.J. 559, 564, 592 A.2d 194 (1991). The Legislature provided that final restraining orders may be dissolved upon good cause shown. N.J.S.A. 2C:25-29(d). The Legislature did not state that permission of the victim is required before the court can dissolve a final restraining order. Essentially, if the court were to consider only subjective fear, it would be merely determining whether the victim consented to dissolving the final restraining order without considering other relevant information. This is not what the Legislature intended because this interpretation would render the "good cause shown" language inoperative. Thus, the courts must consider objective fear — not subjective fear.

438

*438 Moreover, considering merely subjective fear would result in overly broad restraining orders. "The duration of an injunctive order should be no longer than is reasonably required to protect the interest of the injured party." Trans American Trucking Service, Inc. v. Ruane, 273 N.J. Super. at 133, 641 A.2d 274 (emphasis added). The court must balance the parties' individual rights when determining the breadth of the injunctive order. Id. If the courts were to merely focus on subjective fear alone, the scope of the injunction might be broader than is reasonably required to protect the victim and might unduly infringe the rights of the defendant. Thus, when determining whether good cause exists to dissolve a restraining order, the courts must determine whether the victim continues to fear the defendant, and to apply an objective standard for evaluation: would a reasonable victim similarly situated have fear of the defendant under the circumstances.

Here, the court has found that Ms. Carfagno continues to fear Mr. Carfagno and that a reasonable victim similarly situated would fear Mr. Carfagno. The court notes that, with the order in place, Ms. Carfagno was able to criticize Mr. Carfagno when he failed to pick up the child from school for visitation. Mr. Carfagno's failure to pick up the child was inimical to the child's best interests because the child waited at school for two hours before she was picked up. The court finds that, because Ms. Carfagno still objectively fears Mr. Carfagno, absent a final restraining order, she would have a diminished capacity to act in her or the child's best interest. Thus, this factor points to continuing the final restraining order.

3. Nature of the Relationship Between the Parties Today

The third factor is the nature of the relationship between the parties today. Here, the court must look to determine whether the relationship today is one that would allow the defendant to exercise control over the victim. Where the parties do not have children in common and have little other reason to

439

*439 contact each other, it would be more appropriate to dissolve a final restraining order. Where the parties have reason to contact each other, such as where the parties have children in common, it may be less appropriate to dissolve a final restraining order. Other factors for the court's consideration is the relationship of the parties at the time the order was entered. If, for example, there was a dating relationship when the order was entered and two years later when the application is filed, both parties are married to other persons, dissolution may be more appropriate. Certainly, the physical proximity of the parties to each other is another factor bearing upon the relationship. If the parties live in different areas, depending upon other factors present, dissolution may be appropriate.

In all cases, however, when considering the relationship of the parties, the court must determine whether there are indicia of control and domination exercised by the defendant over the victim in the limited amount of contact between the parties permitted under the final restraining order.

Here, the parties have a child in common. Moreover, the court has found that the parties have engaged in arguments in regard to the welfare of the child, which is within the scope of the limited contact permitted under the final restraining order. This leads the court to believe that the order has not been effective in breaking the cycle of control and domination. Thus, this factor leads the court to believe that the final restraining order should be continued.

4. Contempt Convictions

The fourth factor is the number of times that the defendant has been convicted of contempt for violating the final restraining order. The number of violations of the final restraining order gives an indication that the final restraining order is not totally effective in breaking the cycle of power and control exercised by the defendant. Here, Mr. Carfagno was convicted twice for violating the final restraining order. Both convictions involved

440

*440 Mr. Carfagno contacting and harassing Ms. Carfagno. Certainly, these convictions do not show that the cycle of power and control has been broken. Thus, this factor points to continuing the final restraining order.

5. Alcohol and Drug Involvement

The fifth factor is whether the defendant has a continuing involvement with drugs or alcohol. In 1994, 39% of all domestic violence incidents involved drugs or alcohol. Crime in New Jersey: Uniform Crime Report, 1994 at 189, 198. Alcohol alone was involved in 34% of all reported domestic violence cases. Id. Accordingly, drug or alcohol use is highly relevant in determining whether the victim still needs protection. Here, there is no evidence that Mr. Carfagno is involved with drugs or alcohol. Thus, this factor points to dissolving the final restraining order.

6. Other Violent Acts

The sixth factor is whether the defendant has perpetrated violent acts upon the victim or other persons. The defendant's violent nature as evidenced by other violent acts is relevant to whether the victim needs continued protection. See Richard J. Gelles, Ph.D., Regina Lackner, Glenn D. Wolfner, Men Who Batter, Violence Update, August 1994 at 10. ("Perhaps the most important risk marker ... is prior violent or abusive behavior. In the absence of clear or convincing change, past behavior is probably the single most reliable indicator of future behavior, and battering is no exception.") Here, there is no evidence before the court that Mr. Carfagno has engaged in other violent acts. Thus, this factor leads to dissolving the order.

7. Whether Defendant Has Engaged in Domestic Violence Counseling

The seventh factor is whether the defendant has engaged in domestic violence counseling. Counseling may be effective in breaking the cycle of power and control. "Without intervention or

441

*441 some form of change agent, the batterer is likely to continue battering." Id. Here, the defendant has not shown that he has successfully completed domestic violence counseling. Thus, this factor points to continuing the final restraining order.

8. Age/Health of Defendant

The eighth factor is the age and health of the defendant. In some cases of age or infirmity, it might be appropriate to dissolve the final restraining order. Here, the defendant is a physically fit male who is 33 years old. Thus, this factor points to continuing the final restraining order.

9. Good Faith of Victim

The next factor is the good faith of the victim in opposing the defendant's request to dissolve the final restraining order. The court is mindful that sometimes one party to a divorce action abuses the Act to gain advantage in the underlying matrimonial action. See, State v. L.C., 283 N.J. Super. 441, 449, 662 A.2d 577 (App.Div. 1995); Murray v. Murray, 267 N.J. Super. 406, 631 A.2d 984 (App.Div. 1993). Here, the court has found that Ms. Carfagno opposed Mr. Carfagno's request in good faith. Thus, this factor leads to the conclusion that the final restraining order should be continued.

10. Orders Entered by Other Jurisdictions

The final factor is whether the victim is protected from the aggressor by a "a verifiable order of protection from another jurisdiction." Under 18 U.S.C. § 2265(a), a restraining order entered in one state is entitled to full faith and credit by courts of another state. Thus, the fact that a foreign state has entered a restraining order protecting the victim from the aggressor must be known and considered by the court.

Here, the parties have not alleged that a foreign jurisdiction has entered a restraining order to protect Ms. Carfagno from Mr.

442

*442 Carfagno. Thus, this factor points to dissolving the final restraining order.

11. Other Factors Deemed Relevant by the Court

The court also needs to consider any other factors raised by the parties which, based upon the evidence presented, may show that good cause exists to dissolve the restraining order. In this case, the court concludes that there are no other factors which affect the court's judgment

       A restraining order cannot be expunged/erased. A Motion must be filed by the attorney to have the restraining order lifted. The Motion is filed in the county where the Order is filed.