Court vacates 2004 restraining order S.H., v. L.H.,

S.H.,

Plaintiff-Respondent,

v.

L.H.,

Defendant-Appellant.

______________________________________________

May 4, 2016Ann   RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-
 

Submitted April 19, 2016 Decided

Before Judges Guadagno and Vernoia.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Camden County, Docket No. FV-04-1152-05.

B. Michael Borelli, attorney for appellant.

Domestic Violence Clinic, Rutgers School of Law, attorneys for respondent (Victoria L. Chase, on the brief).

PER CURIAM

Defendant L.H. appeals from a December 11, 2014 Family Part order denying his motion to vacate a final restraining order (FRO) entered in 2004. Because the contact and interaction between the parties since the entry of the FRO indicates that plaintiff's claimed fear of defendant is not objectively reasonable, because the FRO has had a harmful effect on the parties' child, and because plaintiff used the FRO in bad faith, we reverse and remand for the entry of an order vacating the FRO.

The parties never married, but lived together for seven years before ending their relationship in January 1998. During this time, they had one child, D.H., born in 1996. The parties separated in January 1998, shortly after an incident in the fall of 1997 in which plaintiff alleges that defendant, who was then a corrections officer, hit her and held a gun to her head. Defendant denied the allegations. The incident was not reported to police and did not result in the issuance of a restraining order. In 1998, defendant consented to granting plaintiff primary custody of D.H.; defendant had visitation and paid child support.

Between 1999 and 2000, plaintiff obtained four temporary restraining orders (TROs) against defendant on March 16, 1999, April 7, 1999, May 21, 1999, and February 1, 2000. On June 14, 1999, plaintiff filed a motion seeking to have defendant found in contempt of the May 21, 1999 TRO. Hearings were held on each domestic violence complaint and the contempt allegation. The judge dismissed all four complaints and the contempt complaint.

Defendant married his current wife, J.H., in 2000, and they have two children. Plaintiff and S.R.H. separated and divorced in December 2015.

In 2004, plaintiff filed a motion seeking to change D.H.'s last name. The motion was heard on October 1, 2004, and the judge ordered the child's name to be hyphenated. During a recess, defendant approached his daughter and attempted to speak with her. When plaintiff stepped in between them, defendant told plaintiff that she would "burn in hell" for what she was doing to their daughter.

On October 8, 2004, defendant approached S.R.H. at one of D.H.'s soccer games and suggested he check a web page in plaintiff's name. When S.R.H. viewed the webpage, he saw a notice that a sex tape would be uploaded in the future showing "moaning and groaning with a Blackwood mom [and] two other guys." Shortly thereafter, the website was removed and no video was ever posted.

Based on these two incidents, plaintiff again obtained a TRO. An FRO hearing was held on October 18, 2004, and the judge heard testimony from plaintiff, defendant, their spouses, and plaintiff's mother. Although plaintiff testified to claimed violations of previously dismissed TROs, allegations of stalking at a soccer game, violations of curbside pickup orders, and the 1997 gun incident, the court found only that the two October 2004 incidents constituted predicate acts of harassment. The judge entered an FRO prohibiting defendant from engaging in future acts of domestic violence or having any form of contact with plaintiff, her husband, or her two children, and barring him from her residence, workplace, and any place where she might be found.

The court permitted defendant to attend D.H.'s events so long as defendant remained fifty feet from plaintiff, and allowed communication between the parties in emergencies involving D.H. The court denied plaintiff's request for defendant to submit to a psychological evaluation, noting that "the last four years it hasn't been so awful at least from [what] this court sees on pretty much a daily basis." The court continued a prior order granting plaintiff residential custody of D.H.

In 2012, defendant moved to vacate the FRO. His motion was denied on December 14, 2012. Although the judge questioned plaintiff's "good faith" when opposing defendant's motion, and noted that he did not "see anything on an objective basis that would suggest that [plaintiff] has fears," the judge nevertheless denied defendant's motion to vacate the FRO because he was "not satisfied" that "eight years [was] sufficiently long enough [for him] to conclude that any potential assault may, indeed, occur." Defendant appealed, and we remanded for a plenary hearing, finding

At the time of the motion hearing, defendant had been married to his current wife for thirteen years, and they have two children together. Plaintiff had been married to her current husband for twelve years, and they also have two children together; however, plaintiff and her husband were about to divorce.

Defendant certified the two families have had ongoing contact during the last eight years regarding the welfare of D.H. and have interacted on numerous occasions, without incident. For example, in November of 2010, plaintiff contacted defendant when she was having issues with D.H. and then met him at a local diner to discuss the issues. Thereafter, numerous follow-up discussions occurred. In 2011, plaintiff invited defendant and his wife to her and her husband's home to take pictures before D.H.'s homecoming dance, and again before another dance. In February of 2012, both families went to a restaurant to celebrate D.H.'s birthday. In March 2012, defendant drove plaintiff and D.H. home following an emergency room visit, at plaintiff's request.

. . . .

While the motion judge stated plaintiff did not have an objective basis to fear defendant, he denied defendant's motion to dismiss the FRO without further hearing. The judge stated he was denying the motion, without prejudice, because he was not satisfied the duration of the FRO was "sufficiently long enough" to warrant dismissal.

. . . .

[T]he record shows substantial changed circumstances since entry of the FRO that constitute good cause for consideration of dismissal. Certainly, the degree of contact and interaction between the parties certified by defendant, along with the absence of any incidents for eight years and the judge's assessment that plaintiff's claimed fear of defendant lacks "an objective basis," represents a substantial change from the circumstances that were present at the time of the entry of the FRO.

[S.H. v. L.H., No. A-2288-12 (App. Div. July 21, 2014) (slip op. at 2-3, 4, 7).]

The remand hearing was conducted by a different judge. Defendant testified that he owns a youth baseball organization and was able to acquire tickets to a Camden River Sharks baseball game, and asked D.H. if she wanted to bring anyone. D.H. said she would like to take her step-brother, C.H. (plaintiff's child). D.H. spoke with S.R.H., who gave permission for C.H. to attend the game. On May 15, 2013, defendant attended the game with his son, D.H., D.H.'s boyfriend, and C.H. D.H. picked up and dropped off C.H. at plaintiff's house.

Seven days after the game, on May 22, 2013, plaintiff filed a complaint alleging that defendant violated the FRO by taking C.H., who was a protected party under the order, to a baseball game. The complaint was filed one day before D.H.'s prom, which was a time when D.H. was with defendant. The police called defendant's home and told his wife to inform defendant of the complaint. D.H. was present when defendant's wife received the call.

After her prom, D.H. ran away and refused to return to plaintiff's home. Plaintiff reported to the police that D.H. was missing. D.H. communicated with the police daily, but refused to tell them where she was "because she didn't want [defendant] to get in trouble, because she felt that her mother would . . . have [defendant] arrested." After a trial, a judge found defendant not guilty and the complaint for contempt was dismissed.

After D.H. ran away, defendant sought residential custody of her. At the time of the custody hearing, D.H. had still not returned and, during a break in the proceeding, while both parties were in the courtroom, defendant told plaintiff: "This is our daughter. We have to do something. You know, she's missing. We've got to do something." Plaintiff immediately got up, told a sheriff's officer to arrest defendant, and walked out of the courtroom. Defendant was not arrested.

Defendant was eventually awarded residential custody of D.H. in the summer of 2013, after the judge spoke with D.H., and the FRO was amended to provide that defendant would be the parent of primary residence.

D.H. then sought to resume use of defendant's surname. Defendant filed a motion, and D.H. appeared in court with both parents. Plaintiff did not object to the name change, and the judge granted the motion.

At the time of the remand hearing, D.H. was eighteen years old and attended college as a full-time student. She worked part-time at a mall, and lived at defendant's home with his wife, J.H., and their two children.

Defendant testified that he and S.R.H. are friendly and they see each other often as he is the "primary source of contact [for D.H.], so she can have a relationship with her [step] brother and sister." S.R.H. and his family get along well with defendant's family and attended D.H.'s graduation party. Defendant's wife sends S.R.H. clothes for his children.

Defendant told the judge that he was seeking to vacate the FRO because it adversely affected D.H. He explained that the FRO hinders D.H.'s relationship with her mother, her step-brothers and sisters, and her stepfather, and that D.H. is "very angry" over the FRO and "holds a lot of resentment towards her mother," such that D.H. "refuses to even call her mother or [] have anything to do with her."

Defendant testified that his daughter "should not have to live this way," noting that plaintiff did not attend D.H.'s high school graduation or a prom gathering. Plaintiff did not permit her children to attend D.H.'s high school graduation party, and defendant was told that he would be arrested if they went.

Defendant took D.H. on college tours and helped prepare her for college, and defendant testified that plaintiff was not present for "any of it" because of the FRO. He claimed that plaintiff does not need protection from him, that he has "no interest" in having any type of relationship with her, and is not concerned with "what she does, who she's with, [or] anything whatsoever." Defendant's biggest concern is D.H.'s health and mental stability moving forward, which he claimed is being adversely affected by the FRO.

Defendant also claimed the FRO is having an adverse effect on his family, noting that his thirteen-year-old daughter "overheard this whole recent situation with the baseball game and was terrified that her father was getting locked up and put in jail." He testified that his daughter "lives in fear" that "somebody's going to come get her dad."

At the time of the hearing, S.R.H. and plaintiff were separated, but S.R.H. testified that he maintained a good relationship with plaintiff. S.R.H. confirmed that he attended D.H.'s graduation party but his children did not because he was concerned plaintiff would call the police "[b]ecause of a violation of the [FRO]."

S.R.H. testified that before the entry of the 2004 FRO, there was "fighting" and "bickering" between plaintiff and defendant surrounding custody of D.H., but things improved and were better for the past ten or eleven years. He explained that there "weren't a lot of interactions," but confirmed that defendant would come over with his wife to take pictures for D.H.'s "proms and stuff."

S.R.H. confirmed that he gave his son C.H. permission to go to the Camden River Sharks game with defendant and that plaintiff did not file the contempt complaint until the day before D.H.'s prom. S.R.H. noted that D.H. was upset by plaintiff's filing of the contempt violation and that plaintiff wanted C.H. to testify, even though S.R.H. did not think "it was a good idea." S.R.H. stated that he was not thinking of the FRO when he gave defendant permission to take C.H. to the baseball game because things had been going well. He asked C.H. to "keep it to ourselves" because he knew plaintiff would be upset.

S.R.H. did not "see any reason why [plaintiff] should be afraid of [defendant]" and never had concerns regarding plaintiff's safety when she was with defendant over the years. He never witnessed defendant commit any act of physical violence against plaintiff and would like to see the FRO vacated.

Defendant's wife, J.H., testified that the relationship between plaintiff and defendant was "tense" when J.H. first met plaintiff fifteen years ago because of custody and visitation issues with D.H. She confirmed that, over the years, "[i]t has gotten better" and that "[t]hings are well."

In 2012, J.H. had a conversation with plaintiff about "putting everything behind us, and moving forward, and having a good relationship for [D.H.]." J.H. told plaintiff of the impact the FRO was having because defendant was "uncomfortable being around her." J.H. claimed that plaintiff gave her word that she would consider getting rid of the restraining order.

J.H. confirmed defendant's testimony that they went to plaintiff's house to take pictures for D.H.'s homecoming dance, and that there were several interactions at D.H.'s soccer games where plaintiff and defendant sat together and discussed D.H.'s schooling and what D.H. wanted for Christmas. J.H. never saw defendant be physically violent or verbally abusive to anyone, and characterized defendant's relationship with D.H., who currently lives with them, as "great."

Plaintiff testified about the events surrounding the 2004 FRO, including defendant's threat to expose a sex tape that the parties made. She testified about the 1997 gun incident, stating that an argument broke out between her and defendant while D.H. and plaintiff's mother were in a bedroom, and that defendant punched her, grabbed her arms, took her car keys from her hand as she tried to leave, and then came up behind her and held a gun to her head and said "here you go bitch [n]ow you're going to get it." Plaintiff did not call the police about the incident.

Plaintiff mentioned the four TROs that were dismissed in 1999 and 2000, but the court did not permit her to go into previously adjudicated details of the incidents. Plaintiff confirmed that she met with defendant at a diner in November 2010 after D.H. revealed to her pediatrician that she was having suicidal thoughts. Plaintiff contacted defendant out of concern for D.H.'s psychological state.

Plaintiff confirmed that, in 2011, D.H. invited defendant and his wife to plaintiff's home to take pictures for D.H.'s homecoming and snowflake dances, and that defendant, his family, and her family attended D.H.'s sixteenth birthday dinner at an Olive Garden in 2012. Plaintiff confirmed an incident in March 2012, where D.H. was hospitalized and she called defendant because "there was an emergency" and D.H. was in "horrible pain." Defendant came to her home, and plaintiff rode in the ambulance while defendant followed behind it. She spent many hours with defendant in the hospital discussing issues related to D.H.'s condition. D.H. was discharged that evening and defendant drove plaintiff and D.H. home.

Plaintiff claimed she did not find out that C.H. attended the Camden River Sharks game with defendant until after the event, and admitted that she filed the contempt complaint before D.H.'s prom and that D.H. screamed at her for doing this to her father.

After the prom, D.H. did not return to plaintiff's home and ran away. Plaintiff was in communication with D.H. after she ran away and D.H. told her that she wanted plaintiff to drop the FRO.

After D.H. returned home, she twice called the Division of Child Protection and Permanency and made claims against plaintiff that were ultimately unsubstantiated. Plaintiff consented to the transfer of residential custody of D.H. to defendant because she claimed D.H. "was not going to follow my rules until I did what she wanted and . . . dropped the restraining order against her father."

On cross examination, plaintiff admitted that she told the judge to "make sure [D.H.] knows I'm changing the locks on the house and she can't come in." She confirmed that defendant was given residential custody, that D.H. currently lives with defendant, and that D.H. spends weekends with her. Plaintiff also admitted that the judge ordered family counseling and D.H. refused to attend unless she dropped the FRO.

Plaintiff claimed that she still needs the 2004 FRO because she is separated from S.R.H., lives alone, and is "defenseless." She also claimed that because of defendant's training as a corrections officer, "he could hurt me and not leave a mark on my body."

At the conclusion of the hearing, the judge denied defendant's motion to vacate the FRO. The judge found defendant's testimony was "vague and evasive" as to the 2004 threat to reveal a sex tape, and that plaintiff's testimony with regard to the 1997 gun incident was credible. No other credibility findings were made as to the parties or the other witnesses who testified. The judge found the parties had an amicable relationship because of their daughter until defendant moved to dismiss the FRO. The judge noted that the only contempt complaint that was filed was dismissed; that defendant never violated the FRO; that defendant does not abuse drugs or alcohol; and that no testimony "suggest[ed] that defendant has been violent towards other persons." Significantly, the judge found that plaintiff's contempt allegation in May 2013, "bordered on bad faith and involved use of the FRO as a sword rather than a shield."

In contrast to the finding of the judge who heard the 2012 motion to vacate that plaintiff did nothave an objective basis to fear defendant, the remand judge found plaintiff's fear of defendant wasobjectively reasonable because of the 1997 gun incident, and was "much less likely to dissipate with the passage of time."

On appeal, defendant claims that the record does not support the trial court's findings regarding credibility; that the court did not give due consideration to the testimony of S.R.H. and J.H.; that plaintiff does not oppose defendant's application in good faith, having repeatedly used the restraining order as a weapon against defendant; that the trial court's finding regarding an objective basis for the plaintiff's fear was not supported by substantial or credible evidence and was not properly analyzed as directed by Carfagno1and our remand order; and that even if the trial court's findings of fact are accepted, the legal consequences that flow therefrom are neither equitable nor what was intended by the legislature and courts.

"[T]he Legislature did not intend that every final restraining order issued pursuant to the [Prevention of Domestic Violence Act] be forever etched in judicial stone." A.B. v. L.M., 289 N.J. Super.125, 128 (App. Div. 1996). A defendant may move to dissolve or modify an FRO upon a showing of "good cause." N.J.S.A.2C:25-29(d).

"With protection of the victim the primary objective, the court must carefully scrutinize the record and carefully consider the totality of the circumstances before removing the protective shield." Kanaszka v. Kunen, 313 N.J. Super.600, 605 (App. Div. 1998). In Kanaszka, we adopted Carfagno's non-exclusive list of eleven factors that trial courts consider when determining whether good cause has been shown. Id.at 607. Those factors, which are to be weighed "qualitatively, and not quantitatively," Carfagno, supra, 288 N.J. Super. at 442, include

(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.]

Additionally, a court must consider whether the continuation of the FRO "prejudices defendant" because that "is what good cause is all about." Sweeney v. Honachefsky, 313 N.J. Super.443, 448 (App. Div. 1998).

Without elaboration, the judge determined defendant's testimony was "vague and evasive" as it pertained to the 2004 threat to reveal a sex tape, and plaintiff's testimony with regard to the 1997 gun incident was credible. Indeed, the gun incident appeared to be the only basis for the remand judge's conclusion that plaintiff's fear of defendant was objectively reasonable.

We note that the gun incident was not the predicate act alleged in support of the 2004 FRO, was emphatically denied by defendant in his testimony, and was only mentioned in passing by plaintiff during her 2004 testimony. The judge in 2004 made no findings as to the gun incident and entered the FRO based on a finding of harassment relating to the sex tape. Moreover, plaintiff repeated the gun allegation in each of the four domestic violence complaints which were ultimately dismissed.

In addition, the finding of the remand judge stands in stark contrast to the finding of the judge that heard the 2012 motion to vacate, who concluded that plaintiff did not have an objective basis to fear defendant. In remanding this matter for a plenary hearing, we noted that the degree of contact and interaction between the parties, the absence of any incidents for eight years, and the prior judge's assessment that plaintiff's claimed fear of defendant lacked "an objective basis" represented a substantial change from the circumstances that were present at the time of the entry of the FRO and constituted good cause for consideration of dismissal. The limited findings of the remand judge does not indicate that any of these factors were appropriately considered.

It has now been almost twelve years since the entry of the FRO and there continues to be no substantiated violations by defendant. Moreover, plaintiff has demonstrated a reliance on defendant in times of crisis with their daughter, and a willingness to interact with him at family events, including D.H.'s dances and athletic events, which belie her claim of fear. Plaintiff chose to ignore the FRO when it suited her and invoked it when defendant did or said something she did not agree with. Plaintiff disregarded potential violations of the FRO between 2010 and 2012, when she twice had defendant to her home to take photos for D.H.'s dances, invited him to a diner to discuss D.H.'s mental health problems, joined him in celebrating D.H.'s sixteenth birthday at an Olive Garden, and accepted a ride home from him after D.H. was hospitalized. It was only after defendant sought to have the FRO vacated at their daughter's insistence that plaintiff pursued a contempt violation, which was dismissed.

More troubling is plaintiff's inappropriate use of the FRO, which was acknowledged by the remand judge. This was apparent when plaintiff admitted to waiting until the day before D.H.'s prom to file contempt charges against defendant for taking C.H. to the Camden River Sharks game, even though defendant had secured the permission of the child's father for C.H. to attend. On another occasion, plaintiff sought defendant's arrest in court when he merely suggested that they work together to help D.H. return home after she ran away.

The Prevention of Domestic Violence Act (PDVA) is designed to assure victims of domestic violence "the maximum protection from abuse the law can provide." N.J.S.A.2C:25-18. "The Legislature intended to protect the victims not to punish the person who committed the act of domestic violence." Carfagno, supra, 288 N.J. Super. at 434. The PDVA "should not be distorted or trivialized by misuse." N.B. v. T.B., 297 N.J. Super. 35, 42 (App. Div. 1997).

Equally troubling is the effect the FRO and plaintiff's use of it against defendant have had on D.H. After plaintiff filed contempt charges on the eve of her prom, D.H. ran away from home and refused to speak with plaintiff. Later, D.H. repeatedly urged her mother to dismiss the FRO, to no avail. Plaintiff did not attend D.H.'s high school graduation, and D.H.'s step-siblings were not permitted to attend her graduation party.

We agree with defendant that the remand judge gave no consideration to the testimony of S.R.H., and J.H. S.R.H. testified that he saw no reason plaintiff should be afraid of defendant and that he never saw defendant commit an act of physical violence against her. J.H. testified, and plaintiff did not deny, that in 2012 plaintiff gave her word that she would consider dismissing the FRO. The testimony of S.R.H. and J.H. was consistent with other evidence before the judge that the parties' relationship steadily improved from 2004 until 2012, when defendant attempted to vacate the FRO.

The judge also did not address compelling evidence dating back to 2000 that plaintiff filed meritless TROs and that the timing of one of the complaints appeared designed to inconvenience defendant. In 2000, plaintiff waited twelve days after an alleged incident to file a TRO on D.H.'s birthday, which D.H. was supposed to spend with defendant. Ultimately the TRO was dismissed after a hearing.

When this incident is viewed together with the questionable timing and lack of merit of plaintiff's contempt filing after the Camden River Sharks game, one day before D.H.'s prom, and the attempt to have defendant arrested in the courthouse, a troubling pattern of misuse by plaintiff of the potent tools of the PDVA is apparent. The judge ignored two of these incidents in reaching his conclusion and noted only that the Camden River Sharks allegation "bordered on bad faith and involved use of the FRO as a sword rather than a shield."

The judge relied entirely on a nineteen-year-old allegation which was never reported to police, was not the subject of a restraining order, was not corroborated by any evidence at the plenary hearing, and was not accepted as a predicate act of domestic violence by other courts when it was raised in four subsequent TROs that were ultimately dismissed.

In December 2012, when defendant's initial motion to vacate the FRO was heard, the judge concluded that he did not "see anything on an objective basis that would suggest that the [plaintiff] has fears, but she testifies that she's afraid." The judge that heard the case in 2012 was the same judge that heard and dismissed plaintiff's February 1, 2000 TRO after a full hearing. Part of the allegations in that TRO was the alleged 1997 gun incident.

In our prior opinion, we noted that the judge's finding that there was not an objective basis for plaintiff's fear represented "a substantial change from the circumstances that were present at the time of the entry of the FRO." S.H. v. L.H., supra, slip op. at 7. After our remand, a different judge heard the matter and reached a contrary conclusion regarding plaintiff's fear, relying primarily on the 1997 gun incident.

While the remand judge was not bound by the prior judge's findings, he was obligated to, at a minimum, acknowledge the finding and determine whether anything occurred in the interim that would justify a contrary conclusion. He did neither.

"The 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." Kanaszka, supra, 313 N.J. Super. at 609.

We are satisfied that the remand judge's finding that plaintiff acted in good faith is untethered to any record evidence and is clearly contradicted by numerous incidents. The factors acknowledged in our last opinion, including the substantial changed circumstances, the length of uneventful contact between the parties, and the assessment that plaintiff's claimed fear of defendant lacks "an objective basis," all support the dissolution of the 2004 FRO.

We remand the matter to the Family Part for entry of a judgment dissolving the 2004 FRO.

Reversed.

1 Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).