K.P. v. G.C.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4002-09T3

K.P.,

Plaintiff-Respondent,

v.

G.C.,

Defendant-Appellant.

_____________________________

Telephonically argued November 12, 2010 Decided December 2, 2010

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2531-06E.

Steven Kropf argued the cause for appellant (Heilbrunn Pape and Goldstein, LLC, attorneys; Mr. Kropf, on the brief).

Janna M. Chernetz argued the cause for respondent (Pomper & Associates, attorneys; Ms. Chernetz, on the brief).

PER CURIAM

In this domestic violence case, defendant G.C. appeals from an April 16, 2010 Family Part order denying his motion to vacate a final restraining order (FRO) obtained by plaintiff K.P., his former girlfriend. We affirm.

The parties were involved in a dating relationship from 2001 to 2006. In June 2006, G.C. contacted K.P. repeatedly stating, "watch your back," "look behind you," "I'm going to kill you," "you're a f____ heroin whore," and "you're -- I'm going to chop off your head." On June 5, 2006, K.P. obtained the FRO against G.C. based on harassment, N.J.S.A. 2C:33-4.

After virtually no contact from the time of the FRO's entry, G.C. attempted to reconcile with K.P. and contacted her through Facebook on June 26, 2009. The parties saw each other during the summer, but K.P. determined that G.C. had not changed. G.C. repeatedly called K.P., sent her numerous text messages, and threatened to distribute "dirty pictures" of her. At the end of the summer, G.C. stated to K.P. "[d]o not think you can use the police and the legal system to make me disappear." After K.P. refused to allow him to visit her at work, G.C. sent her a text message stating, "look around when [you] leave work tonight." K.P. contacted the police because she feared for her life. G.C. was arrested and charged with violating the FRO. After his arrest, G.C. sent K.P. a text message stating that she was "going down." 1

On April 16, 2010, Judge Barry Weisberg conducted oral argument on G.C.'s motion to vacate the FRO. Although the judge found that the parties had engaged in a significant romantic relationship over the summer, he found there was no true reconciliation. The judge reasoned that C.G.'s attempt to rekindle his relationship with K.P. was "almost like a prolonged episode of the cycle of domestic violence where there is a promise to change," and "then it starts up again." The judge concluded that:

There is a strong likelihood, based on the prior actions and behaviors of the parties, that if the [FRO] currently in place is dissolved, the parties will continue to entangle themselves and [G.C.] will continue to seek to rekindle this relationship. It is likely that the prior violent conduct will be repeated in the event that a [FRO] does not remain in effect. This [c]ourt therefore declines to dissolve the [FRO] in place.

On appeal, G.C. argues that the FRO should be vacated because the parties reconciled, and that a plenary hearing was required to determine the reasonableness of K.P.'s claim she continued to fear G.C. We disagree.

Relief from an FRO is governed by N.J.S.A. 2C:25-29d, which requires a showing of good cause. We adopted a non-exclusive list of factors, enumerated by Judge Dilts in Carfagno v. Carfagno, 288 N.J. Super. 424, 434-35 (Ch. Div. 1995), to determine whether a party has shown good cause sufficient to warrant dismissal of a FRO. Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998). The Carfagno factors 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.

[Carfagno, supra, 288 N.J. Super. at 435.]

The motion judge "'should closely scrutinize the record to determine whether there is a likelihood that violent conduct will be repeated.'" Kanaszka, supra, 313 N.J. Super. at 605 (citing A.B. v. L.M., 289 N.J. Super. 125, 131 (App. Div. 1996)). When considering whether a victim fears a defendant, the motion 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 becomes important to consider in evaluating the necessity for continued protection." Id. at 608.

A plenary hearing is not required for every motion to dissolve a FRO. Ibid.

[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.

[Ibid.]

"The linchpin in any motion addressed to dismissal of a [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 Judge Weisberg properly denied G.C.'s motion. G.C. failed to show substantial changed circumstances that constitute good cause for dismissing the FRO. We also conclude that a plenary hearing was not necessary on the issue of K.P.'s fear of defendant. We affirm substantially for the reasons set forth by Judge Weisberg in his oral decision of April 16, 2010.

1 At oral argument, defense counsel indicated that G.C. pled guilty to a violation of the FRO and was sentenced to one year probation.