A.F.F v. C.H.G

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May 26, 2016


Argued May 10, 2016 Decided

Before Judges Espinosa and Currier.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FV-16-000998-09.

Jeffrey Heldman argued the cause for appellant (The Vazquez Law Firm, attorneys; Mr. Heldman and Peter J. Vazquez, Jr., on the brief).

Respondent has not filed a brief.


Defendant C.H.G. appeals from the October 20, 2014 order denying his application to dismiss a final restraining order (FRO) issued in 2010. Because we find the motion judge did not make appropriate findings of fact, we remand for the judge to reconsider the application after a plenary hearing, and necessary findings of fact.

Defendant and plaintiff A.F.F. were divorced in October 1999. There were two children born of the marriage.1 Both parties have since remarried.

Plaintiff had previously applied for two temporary restraining orders (TRO) against defendant, the first in 1997 and the second in 2003; the first TRO was dismissed by plaintiff as part of the divorce proceedings, and the second TRO was dismissed by the court after an adjudication that an act of domestic violence had not been substantiated.

In 2008, plaintiff applied for a third TRO against defendant. The basis for the application was a six-page email written by defendant and sent to thirty family members and acquaintances in which he responded to allegations he believed plaintiff to have made concerning his failure to pay child support and poor parenting. Defendant did not appear at the hearing and an FRO was issued against him. On appeal, we remanded to the trial court to entertain oral argument and determine whether the FRO should be vacated and a full hearing conducted. A.B. v. C.G., No. A-5259-08 (App. Div. Mar. 18, 2010).

On remand, the judge found defendant had a viable excuse for not attending the FRO hearing and the case proceeded to trial. In a written opinion of November 2010, the judge found the email statements were made by defendant with the intent to harass plaintiff and granted the FRO.

In 2014, defendant moved to have the FRO dismissed. After a review of the parties' submissions and brief oral argument, a different Family Part judge denied the motion. The judge referred to the factors set out in Carfagno v. Carfagno, 288 N.J. Super. 424, 434-35 (Ch. Div. 1995), and stated: "[I] have to consider whether or not the victim is consenting to the lift of the restraining order, and she's not, she's objecting to it. And I see also that the plaintiff, based on her submission to the court, does in fact still fear the defendant." Although no testimony was taken, and no question was asked of plaintiff, she spoke at this point saying: "Yes I do." The judge concluded that the application was "too early" and "not warranted at this point."

On appeal, defendant argues the judge erred in denying his application to vacate the FRO.2

We do not disturb a trial court's factual findings unless unsupported by "adequate, substantial and credible evidence," Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), and we pay particular deference to the Family Part's expertise. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).

Relief from an FRO is governed by N.J.S.A. 2C:25-29(d), which requires a showing of good cause. "[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 v. Kunen, 313 N.J. Super. 600, 608 (App. Div. 1998). "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)). 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.

In Kanaszka, id. at 607-08, we adopted the eleven Carfagno factors a trial court should consider when determining whether good cause to dissolve an FRO 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, supra, 288 N.J. Super. at 435.]

In her oral decision, the judge considered the Carfagno factors highlighting the evidence defendant had presented: (1) the lack of convictions for any violation of the FRO; (2) he had undergone counselling; and (3) the FRO created difficulties for him professionally as he had been detained by customs on several occasions and claimed to have lost business prospects upon the completion of background checks. However, without taking any testimony, the judge then concluded that plaintiff was in fear of defendant. Using that conclusion and her supposition that it was too soon for the dissolution of the FRO, the application was denied.

When considering 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. The standard is objective fear because "[t]he duration of an injunctive order should be no longer than is reasonably required to protect the interest of the injured party." Id. at 438 (emphasis omitted) (quoting Trans Am. Trucking Serv., Inc., v. Ruane, 273 N.J. Super. 130, 133 (App. Div. 1994)).

The trial judge made no findings of fact as to plaintiff's objective fear of defendant. Instead, she accepted a statement made in plaintiff's submission to the court. Although we do not "reweigh the evidence" on appeal, we still must find that "sufficient evidence exists" to support the judge's determination. Roe v. Roe, 253 N.J. Super. 418, 431 (App. Div. 1992). The absence of any fact-finding by the motion judge prevents us from making that assessment. There was no evidence presented of any issues between the parties in the six years since the offensive email. The only proffer that circumstances still warranted an FRO was the plaintiff's written statement that she was in fear of defendant. The judge cannot accept that statement at face value. The judge must explore the objectivity of the plaintiff's remark and make a finding of fact as to it. Therefore, we reverse and remand for the family judge to conduct a plenary hearing with regard to defendant's application and for the entry of appropriate factual findings and conclusions of law.

Reversed and remanded for further proceedings in accord with this decision. We do not retain jurisdiction.

1 At the time of defendant's application, one child was emancipated and the other was in college.

2 Defendant also argues that the FRO was entered in error in 2010 as there were insufficient proofs to support the finding of the predicate act of harassment. Those arguments were not the subject of a timely appeal and we do not address them now. "Appeals from final judgments . . . shall be taken within 45 days of their entry." R. 2:4-1; see also Alberti v. Civil Serv. Comm'n, 41 N.J. 147, 154 (1963) (explaining that where a notice of appeal has not been timely filed, we lack jurisdiction to consider the issues presented by the appeal).