M.S. v. S.S

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5202-09T3

M.S., n/k/a M.W.,

Plaintiff-Respondent,

v.

S.S.,

Defendant-Appellant.

_________________________________

March 29, 2011

Submitted March 21, 2011 - Decided

Before Judges Lisa and Sabatino.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-2426-94.

Jef Henninger, attorney for appellant.

Respondent has not filed a brief.

PER CURIAM

In this unopposed appeal, defendant S.S. seeks to reverse the Family Part's denial of his motion pursuant to N.J.S.A. 2C:25-29(d) and Rule 4:50-1 to vacate a final restraining order ("FRO") issued against him under the Prevention of Domestic Violence Act of 1991, N.J.S.A. 2C:25-17 to -35 ("the Act"). The FRO was obtained by defendant's former wife, plaintiff M.S. (who now has the initials M.W.), after a hearing in 1994. The FRO was based on a finding that defendant had harassed plaintiff by making threatening statements to her.

At the time the court granted the FRO seventeen years ago, the parties were still husband and wife in a tumultuous marriage. The trial court was particularly concerned about allowing defendant, after he had committed harassment, back into the marital household where the parties' two minor children were living. In his bench opinion explaining why the FRO was then warranted, the trial judge stated that the parties should not continue to "be in the same place at the same time in residences together . . . if only because the children have parents [who] are now totally at war with each other." The trial judge perceived that the marital residence was "not a safe place, such that either one of the parties might in fact antagonize [the other] by serious gestures."

Shortly after the FRO was issued, the parties divorced. The older child is now in college and the younger child is being home schooled by plaintiff. Therefore, the parties still need to communicate with one another, on a very limited basis, on matters such as child support, medical expenses, and financial contributions for college.

Since the time FRO was issued in 1994, defendant tried, unsuccessfully, on four other occasions through April 2002, to have the FRO lifted. He contends that the persisting existence of the FRO has caused him problems at work, and that it has created an impediment to developing a positive relationship with his children.

Defendant filed his most recent motion to vacate the restraints in April 2010. In support of his application, defendant provided an expert report from a licensed psychologist. The expert met with defendant five times, including two clinical interviews. The expert also administered the MMPI personality test.

According to the psychologist, defendant suffers from anxiety and feelings of persecution, and defendant feels socially alienated and professionally defeated. Despite these problems, the expert concluded that the defendant's personality style is inconsistent with a person capable of, or inclined to, violence. The expert found significant that defendant, at least by his own account, has exhibited no acts of violence, impulse control, or other behavior in violation of the FRO since its entry in 1994. Consequently, the expert opined in his report that defendant poses "no conceivable danger to others," and therefore "there is no rational basis for any person to be protected from him."

In her opposition papers on the motion, in which she was then represented by counsel, plaintiff submitted a certification from herself and also from the parties' daughter. Plaintiff contended that she remains in fear of defendant, asserting that, contrary to his denials, he has indeed continued to act in a hostile and belligerent fashion towards her and the children.

The daughter's certification attached a lengthy letter in which the daughter described how her father has acted aggressively since the FRO was issued, and why she continues to be in fear of him. Among other things, she recounted an incident in October 2008, in which defendant allegedly became enraged and tried to suffocate her with a towel and to attack her brother.

Defendant, in a reply certification, denied that he had attacked either of his children. He maintained that his son is the one who became violent, after being told by defendant to get off the computer.

After considering the competing certifications, the motion judge1 declined to vacate the FRO. However, in his oral opinion, the judge noted that he was denying the defendant's application "by the slimmest of margins."

This appeal by defendant followed. He argues that the motion judge erred in declining to vacate the FRO. He contends that there is no longer a necessity for restraints, and that the judge was unduly swayed by plaintiff's opposing papers in the absence of any cross-examination. Defendant argues that, at a minimum, the case should be remanded for a plenary hearing to develop the proofs with appropriate credibility findings, so that the trial court can reexamine his motion in light of those proofs and the applicable legal standards.

The Act is designed to "assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. In doing so, however, "[t]he Legislature intended to protect the victims not to punish the person who committed the act of domestic violence." Carfagno v. Carfagno, 288 N.J. Super. 424, 434 (Ch. Div. 1995). As part of these offsetting policy considerations, the Legislature included a specific provision in the Act, N.J.S.A. 2C:25-29(d), which authorizes a court to dissolve or modify a restraining order "upon good cause shown." Carfagno, supra, 288 N.J. Super. at 433 (citing N.J.S.A. 2C:25-29(d)); see also Kanaszka v. Kunen, 313 N.J. Super. 600, 608 (App. Div. 1998).

Carfagno delineated eleven factors for courts to consider in evaluating whether "good cause" to vacate restraining order has been demonstrated: (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 use; (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 435-42.

After conducting a plenary hearing at which both parties testified, id. at 432, the judge in Carfagno applied these eleven factors to the proofs adduced at the hearing, and denied the defendant's motion to vacate. Id. at 442. In the course of his analysis, the judge assessed, among other things, the credibility and objective reasonableness of the plaintiff's assertion that she remained in fear of the defendant three years after the FRO had been issued. Id. at 436-38.

Our court has since approved and applied the eleven decisional criteria expressed in Carfagno. See, e.g., Kanaszka, supra, 313 N.J. Super. at 607 (adopting the eleven-factor Carfagno analysis); Sweeney v. Honachefsky, 313 N.J. Super. 443, 447 (App. Div. 1998) (same). When courts apply and weigh these criteria, "the 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 (emphasis added).

To warrant a plenary hearing on the motion to vacate, such as the one conducted in Carfagno, a defendant must make "a prima facie showing [that] good cause exists for dissolution of the restraining order." Kanaszka, supra, 313 N.J. Super. at 608. "If that burden is met, the court should then determine whether there are facts in dispute material to a resolution of the motion prior to ordering a plenary hearing." Ibid.

This approach is consistent with general judicial precepts that disputed material issues of fact should not be resolved on the basis of conflicting written submissions. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (delineating the standards for summary judgment); see also Conforti v. Guliadis, 128 N.J. 318, 322 (1992) (requiring plenary hearings to resolve material factual disputes in the Family Part); Barrie v. Barrie, 154 N.J. Super. 301, 303 (App. Div. 1977), certif. denied, 75 N.J. 601 (1978). In such a proceeding, the judge will have a chance to assess the credibility of the movant's assertions, as tested through the rigors of cross-examination.

We are satisfied that such a plenary hearing is warranted in the present case. The assertions made by defendant in his moving papers, as amplified by the expert opinions of the psychologist, were sufficient to provide prima facie support to dissolve the FRO for good cause under N.J.S.A. 2C:25-29(d). The material facts as to the ongoing need for restraints were sharply disputed in the submissions from plaintiff and the daughter. In turn, plaintiff refuted those counter-assertions in his reply certification.

As the motion judge candidly observed, he denied defendant's motion "by the slimmest of margins." Given the closeness of the issues, we believe that it is most prudent, and most consistent with the governing legal principles, to remand for a plenary hearing. In doing so, we do not intimate what the outcome of that hearing should be. We merely hold that an evidentiary hearing is in order before a final decision is made.

Remanded for a plenary hearing. We do not retain jurisdiction.

1 The motion judge is a different judge than the one who tried the case and issued the FRO in 1994.