N.T. v. A.T.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

N.T.,

Plaintiff-Respondent,

v.

A.T.,

Defendant-Appellant.

December 29, 2014

Submitted November 12, 2014 - Decided

Before Judges Yannotti and Hoffman.

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

A.T., appellant pro se.

N.T., respondent pro se.

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.