P.S. v. G.S.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1918-10T3

P.S.,

Plaintiff-Respondent,

v.

G.S.,

Defendant-Appellant.

___________________________________

December 21, 2011

Argued November 28, 2011 - Decided

Before Judges Ashrafi and Fasciale.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-242-87.

Lilia Londar argued the cause for appellant (William H. Buckman Law Firm, attorneys; Ms. Londar, on the brief).

Ted M. Rosenberg argued the cause for respondent.

PER CURIAM

Defendant G.S. appeals from an October 26, 2010 order of the Family Part denying his motion to vacate a twenty-four year-old domestic violence restraining order. He argues that the Family Part was mistaken in its evaluation of factors relevant to the merits of his motion. Our review of the record redirects us to a different but related question whether an evidentiary hearing was necessary to rule on defendant's motion. We affirm the Family Part's ruling, but without prejudice to defendant re-filing his motion if he can produce evidence that contradicts factual findings that the Family Part relied upon in denying his motion or if he can show additional changed circumstances.

The facts relevant to defendant's application were developed through the written submissions of the parties and arguments of counsel. The parties were married in 1970 and had no children. In 1986, they were living separately, and their divorce case was pending. Plaintiff wife filed a complaint seeking a restraining order. After a hearing, a Family Part judge entered a final restraining order against defendant husband on September 10, 1986. The order barred defendant from plaintiff's residence, from any contact with her, and from harassing plaintiff or any of her relatives.

The restraining order was incorporated into the parties' final judgment of divorce dated June 10, 1987. The divorce judgment also stated the terms of the parties' marital settlement agreement, by which they divided their marital property and defendant was granted a last opportunity to retrieve his remaining personal belongings from the marital home. Both parties waived any claim to alimony then or in the future.

After the divorce, the parties continued to live near each other. Over the next eight years, defendant mailed approximately ten greeting cards and notes to plaintiff, and she may have responded on one occasion with a greeting card to him. The cards and notes contained nothing overtly threatening or harassing. Plaintiff states she complained to the police about receiving the communications, but she had no documentary record of police involvement. No charges were ever filed against defendant for violating the restraining order. Defendant did not attempt any other form of contact, and none whatsoever occurred after 1995.

In 2006, defendant filed a motion to dissolve the final restraining order. In a certification supporting his motion, defendant stated that he wanted to obtain a firearms purchaser card so that he may hunt. He declared that he had not violated the restraining order, he had no criminal convictions, and he did not intend to contact plaintiff. His application was denied on June 23, 2006, by a different Family Part judge from the one who had entered the restraining order twenty years earlier.

In September 2010, defendant filed another motion to dissolve the restraining order. In support of the second motion, defendant again certified that he had not violated the restraining order during its almost quarter-century in existence and that he did not intend to contact plaintiff. He stated he had voluntarily surrendered his weapon when he learned that the 1986 restraining order was still in effect. Apparently addressing a reason for denial of his 2006 motion, defendant stated that a transcript of the 1986 hearing could not be obtained. As a substitute, he described the allegations of plaintiff's domestic violence complaint filed in 1986.

Plaintiff "strenuously" opposed the renewed motion. She filed a certification in which she alleged that defendant intimidated, degraded, and controlled her during the marriage and committed serious acts of domestic violence, especially after their separation. His conduct included screaming at her and pinning her against a wall. After they separated in 1986, he sneaked into the marital home at night and frightened her severely. He drove his pickup truck perilously close to her while she was driving, and she believed he tampered mechanically with her car and broke its windows. She stated that defendant owned about fifty guns at the time of the divorce, and that she was concerned because of his volatile temper and obsession with guns. She claimed that she continued to be "deathly afraid of the defendant" and that she had "developed a nervous tic" as a result of his recent applications to dissolve the restraining order.

The motion was heard by yet a different Family Part judge from the previous ones. After reviewing the submissions and hearing argument by counsel, the judge applied the relevant factors discussed in Carfagno v. Carfagno, 288 N.J. Super. 424, 435-42 (Ch. Div. 1995), and concluded that defendant's motion would be denied.

The judge recognized that the parties were now in their sixties and that no violation of the restraining order had been adjudicated in the twenty-four years since its entry. Nevertheless, he stated that defendant had shown "disregard of the judicial process and judicial orders" by sending greeting cards and notes to plaintiff. The judge was concerned that the parties lived very close to each other and that defendant had attempted to establish contact with plaintiff's brother near the time that he filed his motion. Most significantly, the judge found that defendant had shown "almost a pathologic need to control" plaintiff during the marriage, and he noted that defendant had not sought counseling after entry of the restraining order. The judge concluded that the balance tipped in favor of plaintiff and denied defendant's motion to dissolve the order. Defendant filed this appeal.

Under N.J.S.A. 2C:25-29d, a final domestic violence restraining order may be dissolved or modified upon "good cause shown" and only if the same judge who entered the order considers the application or a complete record of the hearing on which the order was based is made available to the court. In Kanaszka v. Kunen, 313 N.J. Super. 600, 606-07 (App. Div. 1998), we stated that a transcript of the prior proceeding must be provided on a motion heard by a different judge from the one who entered the order, and it is advisable to provide a transcript in all cases. Because the restraining order in this case was entered in 1986, neither the judge who entered the order nor a transcript of the hearing was available.1

When a transcript cannot be produced through no fault of the defendant, due process still requires that the court consider the merits of the motion. Here, the judge who heard the motion in 2010 did, in fact, determine the nature of the prior proceedings and decided defendant's motion on its merits. Defendant has not argued that plaintiff inaccurately described the domestic violence incidents of 1986 and the earlier abusive conduct while they were married.

In Kanaszka, supra, 313 N.J. Super. at 607, we also expressed our accord with the analysis set forth in Carfagno, supra, 288 N.J. Super. 424, addressing the merits of a motion to dissolve a restraining order. The court in Carfagno listed the following relevant factors: (1) whether the victim consents to lifting the order; (2) the victim's fear of the defendant, viewed objectively; (3) the nature of the current relationship between the parties; (4) any contempt convictions for violations of the order; (5) alcohol or drug involvement; (6) evidence of other acts of violence by the defendant against the victim or others; (7) the defendant's participation in domestic violence counseling; (8) the age and health of the defendant; (9) the good faith of the victim in opposing the motion; (10) any orders of protection for the victim entered in another jurisdiction; and (11) any other factors that may be relevant to a showing of good cause to dissolve or modify the order. Id. at 434-35.

In this case, the length of time that defendant has abided by the prohibitions of the restraining order is particularly significant. The order has been in place for more than twenty-four years without any violations having been formally charged and adjudicated, and all contact between the parties ended fifteen years before defendant made his current application. The absence of contact, despite the proximity of the parties' homes, corroborates defendant's declaration that he has no intention of renewing contact with plaintiff. Discord between the parties did not continue after their divorce in 1987, perhaps because the divorce judgment provided no reason for the parties to remain in contact. Communications were minimal in the early years after the divorce and then ended entirely. The domestic relationship has long ended.

Additional factors favoring dissolution are the age of the parties and no evidence of substance abuse. Also, defendant has a legitimate reason for seeking to dissolve the restraining order a desire to hunt lawfully and no evidence was presented of a generally violent disposition, other than defendant's conduct against plaintiff many years earlier.

On the other hand, defendant's conduct at that time was serious domestic violence, and plaintiff continues to seem sincerely distressed by the prospect of his nearby presence without a restraining order in effect. Defendant's abusive and intimidating treatment of plaintiff during the marriage was a factor that weighed heavily in the judge's analysis of the continuing need for a restraining order.

The judge observed plaintiff in the courtroom and commented that she seemed physically affected by the current proceedings. The judge acknowledged, however, that he could not accurately determine plaintiff's emotional state and physical condition only from his observation. Especially in a case where the events occurred many years earlier, admissible evidence of plaintiff's continuing fear and distress would typically be important in balancing the relevant factors. Such evidence might be provided through the testimony of plaintiff subject to cross-examination or other testimony or documentary evidence verifying plaintiff's current fear and emotional state.

We are mindful of the Supreme Court's admonition that Family Part judges are in a better position than an appellate court to determine as a factual matter the need for a domestic violence restraining order. Cesare v. Cesare, 154 N.J. 394, 412 (1998). The deference mandated by Cesare, however, was prompted not only by the Family Part judge's ability to observe the parties but also by the opportunity to hear directly the relevant testimony. Ibid. In this case, the court heard no testimony.

We also question the relevance of defendant's attempt through a third party to establish contact with plaintiff's brother. The restraining order prohibits harassment of plaintiff's relatives but contains no prohibition against other communications with her family members. The record does not warrant an inference of harassment or other improper purpose.

Similarly, the 1986 order did not make any reference to domestic violence counseling. See N.J.S.A. 2C:25-29b(5) (listing professional counseling as potential relief that the court should consider in entering a final restraining order). The absence of counseling may still be a relevant factor, but we must bear in mind that counseling was apparently not required or offered to defendant at the time the restraining order was entered.

Also, the 1986 order preceded the mandatory prohibition stated by N.J.S.A. 2C:25-29b of possession of firearms by a domestic violence defendant. The order did not expressly prohibit defendant from possessing firearms, and no evidence was presented on the current motion that defendant was required to surrender his firearms at the time the order was entered. In arguing the motion in the Family Part, defendant's counsel stated that defendant had been hunting over the years and only recently had learned that the restraining order disqualified him from lawful possession of firearms. See 18 U.S.C. 922(g)(8).

The age and historical circumstances of the restraining order in this case present procedural and factual issues different from those in Kanaszka and Carfagno. In those cases, the restraining orders were entered under the Prevention of Domestic Violence Act of 1991 and its amendments, N.J.S.A. 2C:25-17 to -35, and also much closer in time to the defendants' applications for dissolution. Kanaszka, supra, 313 N.J. Super. at 603-04; Carfagno, supra, 288 N.J. Super. at 430-31. Considering the facts of this case, a plenary hearing may have been beneficial in making the factual findings and determinations critical to a proper balancing of the relevant factors.

Despite our sense that an evidentiary hearing may have provided important information, the record in this case contains no objection by defendant to the court's ruling on his motion without holding an evidentiary hearing. In Kanaszka, supra, 313 N.J. Super. at 608, we held that a plenary hearing is not required for every motion to dissolve a restraining order. In the absence of a specific request, we conclude that the Family Part did not commit plain error in relying on the parties' written submissions and the arguments of counsel.

The judge's evaluation of the relevant factors was within the Family Part's discretionary authority in a domestic violence case, and it was based on a correct application of the law to the factual record as presented. We defer to the Family Part's assessment of the continuing need for a restraining order. See Cesare, supra, 154 N.J. at 412, 416; Silver v. Silver, 387 N.J. Super. 112, 126 (App. Div. 2006).

Our conclusion that grounds for reversal have not been shown is without prejudice to defendant again seeking dissolution of the 1986 order, provided he can make a prima facie showing either that an evidentiary hearing would refute relevant facts relied upon by the Family Part in its prior ruling, or that additional changed circumstances warrant consideration of a renewed application.

A

1 Defendant submitted a letter from the trial court's operations division stating that records of domestic violence hearings were retained for five years until about 2002 or 2003. In those years, the court changed its retention directives, and now domestic violence records are retained indefinitely.