J.N v. S.B

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0538-10T3

J.N.,

Plaintiff-Respondent,

v.

S.B.,

Defendant-Appellant.

______________________________

Submitted May 18, 2011 Decided June 9, 2011

Before Judges Cuff and Simonelli.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket No. FV-09-001191-05.

Todd Wilson, attorney for appellant.

J.N., respondent pro se.

PER CURIAM

Defendant S.B. appeals from the denial of his second motion to vacate a final restraining order (FRO) entered on March 30, 2005. We affirm.

Defendant is a former New Jersey State Trooper and police officer.1 He and plaintiff had a romantic relationship for approximately four years. After a lengthy trial, Judge Lisboa concluded that throughout their relationship, defendant engaged in numerous and egregious acts of domestic violence against plaintiff, including physical assaults and harassment. The judge entered the FRO. Defendant did not appeal.

In June 2008, defendant filed his first motion to vacate the FRO, arguing the parties had no contact since the entry of the FRO, plaintiff had an unsubstantiated fear of him, and the FRO prevents him from securing employment opportunities. Plaintiff opposed the motion. She advised the court she still feared defendant and was "still looking over her shoulder."

Judge Mark Nelson 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 35.]

The judge denied the motion, finding that

it doesn t appear that [plaintiff is] telling me cavalierly sure, Judge, I'm afraid. And when I look at her face sitting there it doesn't look to me like she's just telling me yeah, Judge, I'm afraid just to tell me -- just to get back at [defendant] or to carry a vendetta on past three years. It looks to me that she's afraid. She tells me she's afraid.

. . . .

Some people become afraid more than others. I have to apply the reasonable persons standard. She tells me she's afraid, she's still looking over her shoulder. She's apparently had -- it was a bad relationship that's noted between both of them, so they had a bad relationship.

The judge concluded plaintiff had rational concerns, was a reasonable person, and acted in good faith in opposing the motion. Defendant did not appeal.

In May 2010, defendant filed a second motion to vacate the FRO primarily arguing that the FRO should be vacated based on Carfagno factors two and three. He conceded he had two prior FROs issued against him in domestic violence cases involving other women (factor six), but argued plaintiff only had a subjective as opposed to an objectively reasonable fear of him because they had no contact for several years and have no relationship. He also argued the FRO restricted his employment in the security industry.

Plaintiff opposed the motion based on defendant's relentless attempts to have his two other FROs dissolved, his past history of domestic violence against her and other women, her belief he sought to obtain a weapon, and her continued fear of defendant. She testified as follows:

My fear doesn't end because it's six years. There is no measurement. I don't know what [defendant's attorney] thinks fear [is] and how it's measured in a woman who has gone through this, I don't know how it's measured, by an attorney, or by the [c]ourt, but my fear hasn't changed, Your Honor. I would swear on it. . . .

. . . .

I think he will come to -- first of all, I know that just the buildup of time, I feel, has only gotten him angry that all of the things he wasn't capable of doing, he feels restricted, that I was punishing him. I wasn't punishing him. That was handed down by a court after a very long trial.

. . . .

I feel he will come and pursue me. He needs to get it out, or he needs to talk to me, or whatever. I don't know how he feels, and that's very fearful to me. I know how he behaved when I was present in his life. I know how he behaved toward the other women when I was present in his life.

. . . .

. . . I know how I felt for the four years that I was there. And it hasn t changed. I don't trust him. I don't believe him. He lied then, and I don t feel that he's being honest now, and I'm not changing the way that I feel. I am scared. I don't trust him. I believe this is going to be an opportunity for him to go ahead and do whatever it is that he's been wanting to do. That paper is the only thing that's protecting me.

In a written opinion, Judge Kenny addressed all of the Carfagno factors and relied on Kanaszka v. Kunen, 313 N.J. Super. 600 (App. Div. 1998). Notably, as to factor one, the judge found that plaintiff "strenuously" opposed the dissolution of the FRO. Heavily weighing factor two, the judge found there was "persuasive evidence" that plaintiff had an objectively reasonable fear of defendant based on the long history of domestic violence between the parties, which was marked by defendant's repeated, egregious physical assaults of plaintiff, and his history of restraining orders in domestic violence matters with two other women. The judge also found that

[defendant's] history of aggression strongly suggests that [he] remains a person prone to committing acts of violence, and he has shown no evidence to counter this. This is an objectively reasonable basis for [plaintiff]'s continued fear.

In addition to a long history of domestic violence, there have been no substantial changes of circumstances that should diminish [plaintiff]'s fear. [Defendant] remains a relatively young and apparently healthy man who has worked both as a police officer . . . and in the private security industry. The parties live in towns easily accessible to one another. Most significantly, [defendant] has not undergone any form of domestic violence treatment which would signify an attempt to address his volatile behavior.

The judge concluded defendant's "mere compliance with the FRO" did not represent a "substantial changed circumstance" that would dissipate plaintiff's fear, and plaintiff had a rational basis to remain fearful of him.

Addressing factor six, the judge relied on evidence of the two prior FROs. She concluded this evidence, along with "evidence of violent turmoil" throughout plaintiff's and defendant's relationship, "suggests that [defendant] remains a serious risk to engage in violent behavior."

As to factor seven, the judge found that "[w]hile [defendant] was not ordered to go to counseling, this factor is not dependent on whether the counseling is court ordered. [Defendant] has failed to take the initiative to address his problems with violence through counseling." As to factor nine, the judge found plaintiff was not acting in a bad faith attempt to punish defendant; rather, "[h]er principal motive is the continuance of her safety as she genuinely maintains that it is the FRO which has protected her for the last five years."

The judge concluded defendant failed to demonstrate good cause and a substantial change in circumstances that would justify dissolution of the FRO, and plaintiff's fear of defendant is objectively reasonable. Thus, the judge denied defendant's motion. This appeal followed.

On appeal, defendant argues Judge Kenny erred by (1) finding plaintiff had an objectively reasonable fear of him; (2) applying a subjective standard in considering plaintiff's fear; (3) finding defendant failed to demonstrate a change in circumstances; (4) relying on Carfagno factors six and seven; and (5) failing to accord weight to Carfagno factors three, four, five, nine and ten. Defendant also contends the judge erred by requiring him to show a substantial change in circumstances to justify dissolving the FRO. We disagree with defendant's contentions.

Relief from an FRO is governed by N.J.S.A. 2C:25-29d, which requires a showing of good cause. In Kanaszka, supra, 313 N.J. Super. at 607, 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 final restraining order 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 Judge Kenny properly denied defendant's motion to vacate the FRO. The judge's factual analysis reveals she properly considered all of the Carfagno factors, including whether plaintiff objectively fears defendant, and properly concluded that defendant failed to demonstrate a substantial change in circumstances and good cause for vacating the FRO. The judge also correctly concluded the parties' history of domestic violence and the totality of circumstances established the objective reasonableness of plaintiff's continued fear of defendant. We agree that the history of domestic violence in this case is compelling, and causes plaintiff to remain afraid that defendant will harm her. Given this history, we conclude that plaintiff's fear is objectively reasonable.

Affirmed.

1 Defendant did not submit the transcripts from the trial before Judge Lisboa, who granted the FRO to plaintiff and denied one to defendant. We derive the facts from Judge Lisboa's oral decision, the transcript of the hearing before Judge Mark Nelson on defendant's first motion to vacate the FRO, the transcript of the hearing before Judge Kenny on defendant's second motion to vacate the FRO, and Judge Kenny's written decision.