L.F. v. J.F.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1187-11T2

L.F.,

Plaintiff-Respondent,

v.

J.F.,

Defendant-Appellant.

_______________________________

December 26, 2012

Submitted December 3, 2012 - Decided

Before Judges Parrillo and Maven.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-200-01.

J.F., appellant pro se.

Haber Silver & Simpson, attorneys for respondent (Jani Wise Vinick, of counsel and on the brief).

PER CURIAM

Defendant J.F. appeals a September 30, 2011 order of the Family Part denying his motion to vacate a final restraining order (FRO) entered against him and in favor of his former wife, plaintiff L.F., on August 8, 2000, pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We affirm.

After a thirty-seven year marriage, the parties divorced on August 29, 2002. During the pendency of their divorce proceedings and while separated, plaintiff obtained an FRO against defendant on August 8, 2000, based in part on defendant's harassment of plaintiff on July 17, 2000 after a wake at a funeral parlor in Carteret. After our remand, wherein we found substantial credible evidence of a "past history of domestic violence between the parties," L.F. v. J.F., A-1691-00 (App. Div. January 10, 2002), the Family Part judge on March 7, 2002, rendered the following findings of fact concerning the July 17, 2000 incident:

It was apparent during [defendant's] testimony, that he was very angry with her at the funeral home and did curse at her and did say things to her that would cause her to be annoyed and alarmed. Specifically, under subsection (a) of the harassment statute, [N.J.S.A. 2C:33-4], he clearly had the purpose to harass her when he said that "he knew where she worked and he would get her there" and also that he seemed to be obsessed with getting his weapons back. Both of those comments clearly fall within subsection (a) of the harassment statute as does the fact that he was using offensive language with the purpose to annoy or alarm her.

. . .

It was apparent from hearing the testimony in this case that the victim in this matter had been subjected to domestic violence for a good part of her marriage to the defendant and the incident which took place on July 17 [2000] clearly was of a harassing nature to her.

Prior to his instant application, defendant's earlier motion to vacate the FRO was denied on September 20, 2005, as was his motion to reconsider, on December 2, 2005. A plenary hearing was conducted on his present motion on February 24, 2011, during which defendant, who is now seventy-two years old, asserted that in the eleven-and-one-half years since issuance of the FRO, he has never been charged with any violation thereof; that plaintiff still harbors ill will towards him; and that the continued existence of the FRO infringes on the frequency with which he sees the parties' grandchildren. Plaintiff, on the other hand, testified that she lives in constant fear of defendant to date and has kept her address a secret even from most of her family and friends. During the past decade, she has made every effort to coordinate visits with her children and grandchildren so as not to interfere with defendant's relationship with them.

At the conclusion of the hearing, the Family Part judge denied defendant's application, finding plaintiff's fear of him "objectively reasonable" and her opposition to his motion to vacate to be in "good faith," while defendant has presented "little by way of changed circumstances" to justify the relief he seeks.

This appeal follows.

In determining whether to dissolve an FRO, a motion judge must consider whether the moving party has established "good cause." N.J.S.A. 2C:25-29(d); Kanaszka v. Kunen, 313 N.J. Super. 600, 607 (App. Div. 1998). In Kanaszka, we adopted the non-exhaustive list of factors to be considered in determining "good cause" set forth in Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995):

(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.]

In Kanaszka, supra, we emphasized that "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." 313 N.J. Super. at 607.

In analyzing defendant's dismissal application, the motion judge conducted a plenary hearing, after which he examined each of the eleven Carfagno factors in light of the evidence adduced and rejected defendant's motion based on a "qualitative evaluation" of those factors. We defer to the factual determinations of the motion judge, Cesare v. Cesare, 154 N.J. 394, 412 (1998), which we find are fully supported by the record, as are his conclusions of law, Pascale v. Pascale, 113 N.J. 20, 33 (1988). Simply put, defendant has failed to show "good cause" to dissolve the FRO. Accordingly, we affirm substantially for the reasons stated by Judge McDaniel in his thorough written opinion of September 30, 2011.