J.B.C., Plaintiff-Respondent, v. T.C., dv restraining order affirmed

J.B.C.,  Plaintiff-Respondent,  v.  T.C.,  dv restraining order affirmed

Defendant-Appellant.

__________________________________________________

January 5, 2015

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

Submitted November 17, 2014 – Decided

Before Judges Simonelli and Guadagno.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-323-14.

T.C., appellant pro se.

Respondent has not filed a brief.

PER CURIAM

Defendant T.C. (Tiffany)¹ appeals from a final restraining order (FRO) entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, after a hearing on November 12, 2013. She argues that the Family Part judge "permitted extensive hearsay evidence to come in . . .  [relating] to [her] medical and psychological condition, all of which were [inaccurate]." For the reasons that follow, we affirm.

Tiffany and plaintiff J.B.C. (Jeremy) have two children, M.C. (Mark) and A.C. (Anthony). In a Title 9 matter that preceded this action, a different judge entered an order on October 10, 2013 (Title 9 order), awarding physical custody of Mark and Anthony to Jeremy. That order provides in part:

The children, [Mark and Anthony], shall continue under the care and supervision of the Division [of Child Protection and Permanency] . . . . Legal custody of the children . . . shall be continued with the parents . . . . Physical custody of . . . [Mark and Anthony] shall be continued with the father, [Jeremy].

The order further provided that Tiffany was to submit to psychological and psychiatric evaluations arranged by the Division and sign releases so that records and reports of these services could be sent to the Division. Tiffany's visitation with the children was temporarily suspended "until deemed therapeutically appropriate," and she was restrained from the home where Jeremy and the children were living.

Jeremy obtained a temporary restraining order (TRO) on October 21, 2013, and a hearing was held on his application for an FRO on November 12, 2013. Jeremy testified that in January 2013, Tiffany forcibly dragged Anthony by the arm from the living room to the bedroom, upsetting both children. The police were called, and Tiffany was removed by them and committed to the psychiatric unit at Saint Clare's, in Boonton, where she remained for two weeks.

Jeremy testified that after the entry of the Title 9 order, Tiffany repeatedly entered the marital home, told him she was allowed to be there, and threatened to have Jeremy thrown out of the house and arrested. Jeremy said this occurred on October 14, 19, and 21, 2013. Jeremy also played a voicemail left on his phone by Tiffany on October 19, 2013, where she threatened again to have him arrested.

Jeremy testified that Tiffany called him eight or nine times when he was at his son's baseball game "saying the same things over and over and over again," denying the existence of the court order, and threatening to have him arrested. Jeremy also testified that, on at least two occasions after the entry of the TRO, Tiffany parked her car up the street from the marital home and waited for him and the children to leave.

Tiffany testified and admitted that she was hospitalized at Saint Clare's in January 2013, but claimed it was for "anxiety" caused by Jeremy's abuse. She also admitted that the Division implemented a safety protection plan in July 2013, and that she signed the plan, agreeing to stay away from the house. Tiffany testified that her understanding of the Title 9 order was that she was permitted to return to the marital home as long as she agreed to submit to the mental health evaluations, even if the evaluations were not completed. She admitted that she returned to the marital home on October 14, 2013, because she thought "everything was cleared. . . . There's no more court order." She admitted to parking her car down the street from the marital home but claimed that the children did not see her. She also explained that she returned to the area "just to save face in the neighborhood . . . ."

At the conclusion of the hearing, Judge James M. DeMarzo issued a cogent and thorough forty-six page oral decision. Since Tiffany claimed that the Title 9 judge led her to believe that she could reenter the marital home once she agreed to submit to the mental health evaluations, Judge DeMarzo listened to a recording of the entire Title 9 proceeding and determined that the judge

made it perfectly clear that if [Tiffany] underwent the psychiatric evaluations and signed the required releases that he would not hesitate in signing an order allowing her to begin the reunification process, the terms get back in the house were kind of were bantered about. But he's never signed any order since October 10th, 2013, nor has [Tiffany] sought that.

Judge DeMarzo noted that Tiffany attempted to reenter the home on September 2, 2013, after the entry of a prior order in the Title 9 proceeding barring her from the home. He found that this was "another instance" of Tiffany trying to get into the home when "clearly she was advised not to go in . . . [and] went in anyhow."

On appeal, Tiffany repeats her claim that the October 10, 2013 order "states that I could go home which I did. I did nothing wrong . . . ." She also makes non-specific claims that the judge erred by admitting hearsay evidence.

The only hearsay evidence discussed during the FRO hearing involved Jeremy's attempt to introduce portions of a Title 9 complaint filed by the Division against Tiffany on August 7, 2013. The complaint apparently² referenced Tiffany's history of psychiatric treatment, including her hospitalization in January 2013. Tiffany's counsel objected, and although the court overruled the objection, the complaint was not received in evidence and there is no indication in the record that it was considered by the court. Jeremy was permitted to testify from his own recollection as to Tiffany's mental health issues, which is not hearsay.  See N.J.R.E. 801(c). (defining hearsay).

We find Tiffany's other arguments are without sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(1)(E). We affirm on the basis of Judge DeMarzo's thorough analysis and well-expressed reasons for granting the FRO.

Affirmed.

N.T. v. A.T. Motion to vacate DV FRO denied

N.T. v. A.T. Motion to vacate DV FRO denied  Judges Yannotti and Hoffman.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-0493-12.

« NOT FOR PUBLICATION WITHOUT THEAPPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

PER CURIAM

Defendant A.T. appeals from the June 11, 2013 Family Part order denying his motion to vacate the 2008 final restraining order (FRO) entered in favor of his former spouse, respondent N.T., pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. A.T. also appeals from the July 19, 2013 order denying his motion for reconsideration. We affirm both orders.

We derive the following facts from the record. The parties were married in 1997 and have two daughters, born in 1997 and 2003. Plaintiff filed a divorce complaint in December 2007 and defendant moved out of the marital residence in Marlboro in January 2008. That same month, plaintiff filed a domestic violence complaint (DVC) after defendant handed her a copy of a manuscript of a novel he was writing. The last chapter of the novel describes how the main character was going to kill himself by flying a plane into a house in Marlboro on a particular day in April, the same date as defendant's birthday. Before the hearing on the DVC, the parties agreed to a consent order for civil restraints, which the court entered on February 22, 2008, along with the dismissal of the DVC.

Plaintiff filed another DVC on November 6, 2008. The complaint alleged terroristic threats and harassment, claiming that defendant called the marital home and told plaintiff's sister that "if the children didn't live with him, something bad would happen," and then repeated the same threat to the parties' oldest daughter, then eleven years old. The complaint further alleged an extensive history of prior domestic violence, including repeated acts of harassment and stalking.

At the conclusion of a trial on December 3, 2008, the court found that defendant had "engaged in a course of very alarming conduct" that constituted harassment and that plaintiff required the protection of an FRO "to protect her from immediate danger and to prevent further abuse," citing Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006). Between 2009 and 2012, defendant filed six unsuccessful motions to dismiss and/or modify the FRO.

On June 7, 2013, the trial court held a hearing on the motion under review, and both parties testified. Defendant contended that there were unsatisfactory proofs at the time the restraining order was entered and that the court should not have found plaintiff credible. He also claimed that plaintiff was motivated to obtain the FRO so that she would be eligible for citizenship. Because plaintiff had become a citizen, he asserted that there is no need to continue the restraining order. He also emphasized that he now spends most of his time in Israel and that plaintiff has relocated to California.

Plaintiff strongly objected to defendant's motion, claiming that defendant

made my life a living hell without a restraining order. He harassed my friends, he showed up at my work, he called everybody at my work. . . .

He threatened my family. He threatened my friends. He threatened me. And with him saying that he now lives in Israel and I live in California, I think there is more threat . . . it's more concerning because . . . . nobody has jurisdiction over him anymore. So he can do whatever he wants at any given time.

. . . [T]he child exchanges were all at the police station. This relationship did not get any better from the time that we separated and got divorced. It's [a] very hostile relationship. And it's never going to get any better.

And the only way for me to feel somewhat safe is to have a restraining order in place. And for my family to feel somewhat safe.

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.]

Applying these standards, the trial court found that defendant failed to establish good cause to dissolve the FRO.

On appeal, defendant contends that (1) the trial court erred by failing to weigh the credibility of plaintiff against that of defendant "in the context of who would benefit by the filing of a domestic violence complaint"; (2) New Jersey lacks jurisdiction to continue the FRO because both parties have moved out of the state; and (3) he has shown good cause to justify the dismissal of the FRO.

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) (alteration in original) (citation and internal quotation marks omitted). 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). 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 also 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"). Against this standard, and after careful consideration of the record, we are satisfied that defendant's arguments lack sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(1)(E). We add the following remarks.

Relief from an FRO is governed by N.J.S.A. 2C:25-29d, 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[n] [FRO] 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 she considered the Carfagno factors, including whether plaintiff objectively fears defendant, and concluded that defendant failed to demonstrate good cause for vacating the FRO. The record supports the conclusion that the parties' history of domestic violence and the totality of circumstances established the objective reasonableness of plaintiff's continued fear of defendant. 

Defendant does not separately address the reconsideration order. Since we consider the judge's initial order to have been correct on the merits, in any event, we do not find her denial of reconsideration to have been error either.  See Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). The judge also properly declined to address defendant's new argument, raised for the first time on reconsideration, that the court lacks subject matter jurisdiction based on both parties now residing out of state.  See ibid. Defendant has raised this argument on appeal, which we decline to address as well.  Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).

Affirmed.

RESPONSE TO DOMESTIC VIOLENCE INCIDENTS

RESPONSE TO DOMESTIC VIOLENCE INCIDENTS

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THIS SECTION PREPARED BY THE DIVISION OF CRIMINAL JUSTICE; not reviewed or endorsed by the Judiciary.

The agency shall have clear policy and procedures on the response to domestic violence

incidents realizing the importance and potential for additional violence of such incidents.

3.2.1 The agency shall insure that all allegations of domestic violence are responded to

promptly and investigated thoroughly.

3.2.2 The agency shall insure that the safety of the victim and all individuals at the scene of

domestic violence, including the officers, is of primary concern.

3.2.3 The agency shall insure that victims are notified of their domestic violence rights as

required by statute.

3.2.4 The agency shall insure that all officers who respond to domestic violence incidents

shall have available current and accurate information for referrals to appropriate

social service agencies.

3.2.5 The agency shall establish or participate in an established domestic violence crisis

team.

3.3 RECEIPT AND PROCESSING OF DOMESTIC VIOLENCE COMPLAINTS

When domestic violence incidents generate criminal or civil domestic violence complaints,

or both, the processing of those complaints shall be explicitly defined.

3.3.1 The agency shall specify the procedure to be followed in filing of criminal charges

stemming from domestic violence incidents.

3.3.2 The agency shall specify the procedure to be followed in accepting and processing

domestic violence complaints at times when the Superior Court, Family Division, is

open.

3.3.3 The agency shall specify the procedure to be followed in accepting and processing

domestic violence complaints at times when the Superior Court, Family Division, is

closed but the Municipal Court is open.

3.3.4 The agency shall specify the procedure to be followed in accepting and processing

domestic violence complaints at times when the Superior Court, Family Division and

the Municipal Court are closed.

3.4 DOMESTIC VIOLENCE ARRESTS.

The agency shall delineate, in accordance with United States Constitution, New Jersey

Constitution and statutes, court decisions, and Attorney General and county prosecutor

directives and guidelines, those domestic violence incidents in which the arrest of the actor is

mandatory.

3.4.1 The agency shall specify those domestic violence incidents which require mandatory

arrests:

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THIS SECTION PREPARED BY THE DIVISION OF CRIMINAL JUSTICE; not reviewed or endorsed by the Judiciary.

A. Act involving signs of injury;

B. Violation of a restraining order;

C. A warrant is in effect;

D. There is probable cause to believe a weapon was involved in the act of

domestic violence.

3.4.2 The agency shall specify those domestic violence incidents in which arrest is

discretionary.

3.4.3 The agency shall clearly delineate the procedure to be followed in cases involving

violation of an existing restraining order.

3.4.4 The agency shall specify the procedure to be followed in processing an arrest for

domestic violence, including:

A. Signing of complaint;

B. Fingerprinting;

C. Photographing;

D. Bail.

3.4.5 The agency shall specify the procedure to be followed when a charge of domestic

violence is filed against a law enforcement officer.

Source: DOMESTIC VIOLENCE PROCEDURES MANUAL

https://www.judiciary.state.nj.us/family/dvprcman.pdf

WHERE TO FILE A CRIMINAL COMPLAINT WITH AN ACCOMPANYING TRO APPLICATION AND COMPLAINT

WHERE TO FILE A CRIMINAL COMPLAINT WITH AN ACCOMPANYING TRO

APPLICATION AND COMPLAINT

2.3.1 When a victim is seeking a TRO, a companion criminal complaint may also be

signed against the defendant in one of the following locations:

A. Where the alleged act of domestic violence occurred, or

B. Where the defendant resides, or

C. Where the victim resides, or

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II - 3

D. Where the victim is sheltered or temporarily staying.

2.3.2 The out-of-jurisdiction complaint (i.e., one taken not where the incident occurred)

should be prepared on a blank CDR and the court accepting the complaint for filing

shall have the authority to issue process and set bail as if the alleged offense had

occurred in that jurisdiction. A “blank” CDR is one without the court’s name or

municipality code in the caption.

2.3.3 The companion criminal complaint shall be forwarded to the jurisdiction where the

offense is alleged to have occurred for investigation and prosecution.

2.3.4 A criminal complaint does not preclude the victim from filing a domestic violence

complaint and seeking a TRO. A person may also file criminal charges without

seeking a TRO.

2.4 WHERE TO FILE A CRIMINAL COMPLAINT WHEN THERE IS NO

ACCOMPANYING COMPLAINT/TRO

2.4.1 The victim may file a criminal complaint with the Municipal Court or police

department where the alleged act occurred. See also Section 3.11.4.

2.4.2 If the police officer believes that no-contact provisions should be issued as a

condition of bail, the officer should inform the court of the circumstances justifying

such request when the criminal complaint is being processed and bail is about to be

set. This section shall be checked off on the appropriate form (the bail recognizance

form). The officer should include in the domestic violence offense report the reasons

for the request and the court’s disposition of the request. This order must be in

writing and given to the victim consistent with N.J.S.A. 2C:25-26.

SECTION III

LAW ENFORCEMENT

THIS SECTION PREPARED BY THE

DIVISION OF CRIMINAL JUSTICE

This section has not been reviewed or endorsed by the Judiciary.

THIS SECTION PREPARED BY THE DIVISION OF CRIMINAL JUSTICE; not reviewed or endorsed by the Judiciary.

A. INTRODUCTION - DOMESTIC VIOLENCE STANDARDS

Domestic violence, a serious crime against society, must be affirmatively addressed by both law

enforcement and the courts so that the victims and society are protected.

Prescribed procedures are necessary so that both law enforcement officers and the courts can

promptly and effectively respond to domestic violence cases.

Because of the diversity of police resources in this State, county prosecutors, who are the chief law

enforcement officers of their counties, should be responsible for procedures used in all the law

enforcement agencies of their counties.

To promote uniformity in police response statewide, the county response procedure should conform

to the format of the attached Standard.

The General Guidelines on Police Response in Domestic Violence Cases, promulgated by the

Attorney General on April 12, 1988 have been expanded and revised. The revised Guidelines have

been incorporated into this Standard.

The response procedures to be developed by county prosecutors for law enforcement officers should

then be included in this Domestic Violence Procedures Manual. The Manual was jointly developed

by the Administrative Office of the Courts and a committee of law enforcement officials convened

by the Attorney General.

The Manual is intended to secure appropriate responses to domestic violence in this State. The

unique unified approach will assure prompt assistance to the victims of domestic violence and

demonstrate New Jersey’s resolve that violent behavior will not be tolerated in public or in private.

Any questions regarding law enforcement procedures should be directed to the Division of Criminal

Justice, Prosecutors Supervision and Coordination Bureau, Justice Complex, Trenton.

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THIS SECTION PREPARED BY THE DIVISION OF CRIMINAL JUSTICE; not reviewed or endorsed by the Judiciary.

PERFORMANCE STANDARDS

GOAL: The goal of this standard is to establish procedures for the proper and consistent handling

of domestic violence incidents. The procedures will be established by the county prosecutor or by

municipal law enforcement agencies as needed. Exceptions will be made for municipal law

enforcement agencies as approved by the county prosecutor.

DOMESTIC VIOLENCE

3.1 DOMESTIC VIOLENCE POLICY AND PROCEDURES

The agency shall adopt specific procedures for the handling of domestic violence and codify

these procedures through policy.

3.1.1 The agency shall develop and implement written policy governing the handling of

domestic violence incidents.

3.1.2 The agency shall develop and implement specific procedures for:

A. Response to domestic violence incidents;

B. Receipt and processing of domestic violence complaints and restraining

orders;

C. Domestic violence arrests;

D. Weapons relating to domestic violence complaints and restraining orders;

E. Reporting of domestic violence incidents;

F. Training of officers in response to domestic violence incidents.

3.1.3 The agency shall clearly define and explain all relevant terms used in its domestic

violence policy, including but not limited to:

A. Domestic violence;

B. Victim of domestic violence.

3.1.4 The agency shall insure that its domestic violence policy and procedures are in

compliance with United States Constitution, New Jersey Constitution and statutes,

court decisions, and Attorney General and county prosecutor directives and

guidelines.

Source: DOMESTIC VIOLENCE PROCEDURES MANUAL

https://www.judiciary.state.nj.us/family/dvprcman.pdf