MARIA C. PRADO v. DWIGHT E. GARCIA

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2989-05T22989-05T2

MARIA C. PRADO,

Plaintiff-Respondent,

v.

DWIGHT E. GARCIA,

Defendant-Appellant.

__________________________________________________

 

Submitted November 29, 2006 - Decided December 21, 2006

Before Judges Stern and Collester.

On appeal from the Superior Court of New

Jersey, Chancery Division, Family Part,

Bergen County, Docket No. FV-02-000872-95.

Dwight E. Garcia, appellant pro se.

Donald M. Onorato, attorney for respondent.

PER CURIAM

Defendant, former husband, appeals from an order entered on January 20, 2006, denying reconsideration of an order of October 18, 2005 denying his "application to dismiss the final restraining order" ("FRO") which was entered on October 28, 1994. On June 10, 2005 we remanded for a plenary hearing on defendant's motion to vacate the FRO. The remand was ordered to address our concerns that the certifications on the application to vacate were "conflicting"; that despite plaintiff's four previous complaints and a complaint by one of the parties' daughters, no violations of the FRO were found over the ten-year period since it was issued; that defendant had asserted the FRO had adversely affected his employment opportunities as a dentist, and that plaintiff was opposing his vacation application based on claims of abuse which she had not originally or previously asserted. The children are now all emancipated, but issues concerning financial arrearages remain unresolved.

The contested facts were the subject of testimony on the remand. Both parties testified. The defendant testified that the FRO "has been an impediment in [his] securing positions in academia and in the public sector," and that he had been arrested for violations of the FRO and had "to stop trying to contact [his] daughters," but "never" violated the order. He admitted hiring an investigator to follow plaintiff and gather information about her in order to reopen "the financial aspects" of the case.

The plaintiff testified that she was still in "fear" of defendant. She asserted that he committed "many acts of violence" against her and the children. She further testified that she "moved numerous times" and changed employment to avoid defendant, but "ha[s] seen him at every single place that [she has] lived." She stopped filing complaints for contempt because they "didn't get [her] too far," and would receive counterclaims for harassment. She also referred to "many instances of violence" that were not developed in the 1994 proceedings.

After the evidentiary hearing on October 18, 2005, Judge Ellen L. Koblitz made credibility determinations, and concluded that defendant had made "contact [with plaintiff] even though the defendant was not convicted of any contempt charge," plaintiff had acted in "good faith" and plaintiff had a "subjective" and "objective" fear of defendant. Reconsi- deration was denied on January 20, 2006.

Defendant now contends that the trial court "abused its discretion in denying appellant's motion to vacate the restraining order of October 28, 1994," "did not follow the recommendations" of our remand order, and did not make findings and conclusions which can be sustained on appeal.

We affirm the denial of the motion for reconsideration because, as Judge Koblitz noted, there was nothing presented which suggested she "was incorrect or mistaken" in rendering her decision on October 18, 2005. As she said, "[n]othing . . . has been pointed out to me by the defendant other than, understandably, he disagrees with the decision."

To the extent that the October 18, 2005 order is before us, we find no basis to reverse. R. 2:11-3(e)(1)(A).

While the judge did not expressly address all the Carfagno factors, and while defendant challenges the new claims of a basis for the FRO and findings for its violation, the record supports the denial of defendant's application based on the judge's findings regarding his violations of the FRO and plaintiff's resulting fear. See Carfagno v. Carfagno, 288 N.J. Super. 424, 436 (Ch. Div. 1995); accord Kanaszka v. Kunen, 313 N.J. Super. 600, 605 (App. Div. 1995). See also Cesare v. Cesare, 154 N.J. 394, 416 (1998) (scope of review requiring deference to the "special expertise" of the family court); Rova Farms Resort Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84 (1974). Compare Sweeney v. Honachefsky, 313 N.J. Super. 443, 447 (App. Div. 1988) (disillusion of FRO after "brief dating relationship" in "marginal" case).

 
Affirmed.

The record contains proceedings involving three complaints on August 5, 1996, and separate complaints on May 25, 1999 and on May 16, 2000 (denying a restraining order with respect to his daughters Michelle and Deborah).

While plaintiff has presented transcripts of proceedings to us, it does not appear that defendant furnished the trial court the "complete record" of prior proceedings, including all prior transcripts, which is necessary to "properly evaluate the application for dismissal," Kanaszka, supra, 313 N.J. Super. at 606.

(continued)

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5

A-2989-05T2

RECORD IMPOUNDED

December 21, 2006

 


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