C.G. v. K.Z.

RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-1237-17T1

C.G.,

          Plaintiff-Respondent,

v.

K.Z.,

     Defendant-Appellant.
____________________________

                    Submitted September 27, 2018 – Decided October 23, 2018

                    Before Judges O'Connor and Whipple.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Morris County,
                    Docket No. FV-14-0810-15.

                    Elizabeth H. Smith, attorney for appellant.

                    C.G., respondent pro se.

PER CURIAM
      Defendant appeals from an October 5, 2017 order denying his motion to

dissolve a final restraining order entered against him on April 9, 2015. We

affirm.

      We discern the following facts from the record. The parties began dating

after meeting at plaintiff's place of work. Plaintiff moved into defendant's house

in 2013 and their relationship deteriorated soon after, prompting plaintiff to

move out and end the relationship in 2014. Defendant was persistent and

appeared at plaintiff's gym, entered her car, left her unwanted messages and

otherwise engaged in a course conduct subsequently found by a Family Part

judge to be alarming. On April 9, 2015, the court entered a final restraining

order (FRO) against defendant after finding defendant's actions constituted

harassment. The FRO prohibited defendant from having contact with plaintiff,

certain family members and her co-workers, and barred him from plaintiff's

residence, place of employment and certain other addresses.

      Defendant moved to dissolve the FRO on February 1, 2017, submitting a

certification asserting changed circumstances warranting dissolution of the

restraints. In particular, he asserted changed circumstances because the order

was over two years old, they had both changed jobs and residences and he is in

a new relationship. Defendant requested, alternatively, the order be modified to


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permit him to conduct business at plaintiff's former workplace because she no

longer worked there. Plaintiff filed a certification in response asserting she

continues to need an order of protection and outlining her reasons in detail.

      The trial court conducted a preliminary hearing on October 5, 2017.

Plaintiff, through unsworn testimony, said she was still fearful of defendant,

carried the restraining order with her at all times, and believed defendant still

posed a threat to her. Since entry of the FRO, plaintiff alleges the parties saw

each other on at least three occasions. In one instance, plaintiff and defendant

had an accidental encounter in a bar and defendant allegedly left after a verbal

confrontation with plaintiff's friend. In a second encounter, defendant allegedly

appeared at a running event plaintiff planned. Plaintiff also learned defendant,

who had previously lived 8.1 miles from her, moved to a house 6.8 miles from

her home. Defendant did not testify.

      The Family Part judge concluded changed circumstances did not exist;

therefore, a formal hearing was unnecessary. The trial court denied defendant's

motion to dissolve the FRO, but did amend the FRO to allow defendant to enter

plaintiff's prior workplace.1 This appeal followed.



1
  The Family Part judge was careful to note the amended FRO had no bearing
on whether the workplace's security still prohibited defendant from entering.
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      "We have a strictly limited standard of review from the fact-findings of

the Family Part judge." N.J. Div. of Youth & Family Servs. v. I.H.C.,  415 N.J.

Super. 551, 577 (App. Div. 2010). We defer to the judge's findings "unless it is

determined that they went so wide of the mark that the judge was clearly

mistaken." N.J. Div. of Youth & Family Servs. v. G.L.,  191 N.J. 596, 605

(2007). However, questions of law are reviewed de novo. Smith v. Millville

Rescue Squad,  225 N.J. 373, 387 (2016).

      Pursuant to the Prevention of Domestic Violence Act, a FRO may be

dissolved upon good cause shown.  N.J.S.A. 2C:25-29(d). Good cause requires

proof of changed circumstances between the parties. In Carfagno v. Carfagno,

the court listed eleven factors a trial judge should weigh in determining changed

circumstances:

            (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


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            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), adopted by Kanaszka v. Kunen, 313
            N.J. Super. 600, 607 (App. Div. 1998).]

Not every dissolution application is entitled to a hearing; rather, the defendant

must first make a prima facie showing of changed circumstances and raise a

dispute of material fact. Kanaszka,  313 N.J. Super. at 608.

      Here, the trial judge based his conclusions on both parties' certifications

and plaintiff's unsworn testimony. The judge analyzed each of the applicable

Carfagno factors and focused on the parties' close proximity and how they

continue to encounter each other because "their circles do overlap." The trial

judge noted plaintiff's fear of defendant was objective because it had only been

roughly two years since the last finding of harassment.

      We see no reason to disturb these conclusions. The trial judge should not

have considered plaintiff's unsworn testimony, but even as error, we consider it

harmless.2 Defendant's certification in support of his motion to dissolve the

FRO did not establish a prima facie case of changed circumstances. Defendant



2
  We note pro se plaintiff's brief contains some factual recitations outside the
four corners of the record. We have not considered those assertions in our
analysis. R. 2:6-2.
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argues the passage of time and the fact he is in another relationship is sufficient

to constitute changed circumstances.        However, the passage of time alone,

absent evidence indicating plaintiff has no objective basis to fear defendant, is

insufficient to show changed circumstances. Moreover, defendant's certification

restates the Carfagno factors in a conclusory manner without providing

substantive support. See Lepis v. Lepis,  83 N.J. 139, 159 (1980) (conclusory

allegations should be ignored in determining whether a plenary hearing is

necessary). Without evidence of changed circumstances, the trial court rightly

concluded a plenary hearing was unnecessary.

      Affirmed.




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