K.M. v. ANTHONY GERBASIO

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

K.M.,

Plaintiff-Respondent,

v.

ANTHONY GERBASIO,

Defendant-Appellant.

_____________________________________

November 14, 2014

Submitted October 22, 2014 Decided

Before Judges Waugh and Carroll.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-1007-07.

Gonzalez & Caride, attorneys for appellant (Marlene Caride, on the brief).

Respondent has not filed a brief.

PER CURIAM

Defendant Anthony Gerbasio appeals the Family Part's August 26, 2013 order denying his motion to dissolve the 2007 final restraining order (FRO) entered in favor of plaintiff K.G. (Karen).1 Because we conclude that the motion judge applied the wrong legal standard, we reverse the order on appeal and remand for further consideration consistent with this opinion.

We discern the following facts and procedural history from the record on appeal. In 2006 and 2007, Gerbasio and Karen had a dating relationship. On April 16, 2007, the Family Part granted Karen's second application for an FRO. The application was premised on allegations of harassment. N.J.S.A. 2C:33-4(a).

In May 2013, Gerbasio filed a motion to dissolve the FRO. According to Gerbasio, he and Karen have had no contact for over six years. Karen has relocated to Florida. Gerbasio continues to reside in New Jersey, and has married. Gerbasio contends that the existence of the FRO makes travel difficult for him and his wife. He was never charged with violating the FRO and no other restraining orders have been entered against him.

The motion judge held a plenary hearing at which both parties testified. Karen opposed the motion, based on her fear that Gerbasio would attempt to contact her again. She asserted that she became engaged just prior to Gerbasio's motion and that she was considering returning to New Jersey. The judge denied the motion, explaining that he did so "reluctantly." He based his denial on Karen's fear that Gerbasio would try to contact her again if the FRO were to be dissolved. The judge stated that he believed Karen objected in good faith and that he weighed her objection "fairly heavily based upon her subjective concerns." This appeal followed.

We ordinarily accord great deference to the discretionary decisions of Family Part judges. Donnelly v. Donnelly, 405 N.J. Super. 117, 127 (App. Div. 2009) (quoting Larbig v. Larbig, 384 N.J. Super. 17, 21 (App. Div. 2006)). Similar deference is accorded to the factual findings of those judges following an evidentiary hearing. Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). A judge's purely legal decisions, however, are subject to our plenary review. Crespo v. Crespo, 395 N.J. Super. 190, 194 (App. Div. 2007) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)); Lobiondo v. O'Callaghan, 357 N.J. Super. 488, 495 (App. Div.), certif. denied, 177 N.J. 224 (2003).

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

(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.

 
[Carfagno v. Carfagno, 288 N.J. Super. 424, 434-35 (Ch. Div. 1995).]

"[T]he moving party has the burden to make a prima facie showing good cause exists for dissolution of the restraining order prior to the judge fully considering the application for dismissal." 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. Conclusory allegations should be disregarded." Ibid. (citing Lepis v. Lepis, 83 N.J. 139, 159 (1980).

When considering Carfagno factor two, whether the victim fears the defendant, the judge 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.

Gerbasio satisfied his obligation to make a prima facie showing that good cause existed for dissolution of the FRO, including his marriage and an extended period without contact between him and Karen. Although Karen's opposition was based on fear, which is the second Carfagno factor, the judge's reliance on that factor was based on Karen's subjective concern rather than objective fear, which is "that fear which a reasonable victim similarly situated would have under the circumstances." Carfagno, supra, 288 N.J. Super. at 437. Our reading of the record suggests that the judge might not have been disposed to deny Gerbasio's motion had he applied the objective standard as required by Kanaszka.

Consequently, we remand to the motion judge, who actually heard and observed the parties testify, Cesare, supra, 154 N.J. at 412, for reconsideration using the objective analysis required by Kanaszka and Carfagno. We do not retain jurisdiction.

Reversed and remanded.

1 We use a pseudonym for the plaintiff for the sake of clarity and confidentiality.