J.L.O. v. L.E.G.

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                        NOT FOR PUBLICATION WITHOUT THE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-1636-16T1

J.L.O.,

        Plaintiff-Respondent,

v.

L.E.G.,

     Defendant-Appellant.
_________________________________

              Submitted January 22, 2018 – Decided February 14, 2018

              Before Judges Messano and Vernoia.

              On appeal from Superior Court of New Jersey,
              Chancery Division, Family Part, Atlantic
              County, Docket No. FV-01-0773-16.

              Brian F. O'Malley, attorney for appellant.

              Respondent has not filed a brief.

PER CURIAM

        Plaintiff J.L.O. and defendant L.E.G. were once married.                   In

August 1994, plaintiff obtained a temporary restraining order

(TRO) pursuant to the Prevention of Domestic Violence Act (PDVA),


N.J.S.A. 2C:25-17 to -35, based upon a complaint that defendant

assaulted and harassed her.            The TRO was issued in Essex County,
apparently    shortly    before,   or     contemporaneously    with,    the

commencement of the parties' divorce action.         The March 13, 1995

final judgment of divorce (JOD) reflects a continued contentious

relationship.      It provided that defendant was permitted to have a

"blood relative" accompany him during "supervised visitation" with

his infant daughter outside plaintiff's presence.1            The JOD also

provided that the court was assuming jurisdiction of the pending

domestic violence matter (DV matter).

     On July 5, 1995, the same judge entered a final restraining

order (FRO) in the DV matter that referenced the JOD and provided

"all issues were settled on 11/10/94.           It was agreed that the

restraining order would continue [and] that defendant would have

no contact with [plaintiff and] would stay at least [two] blocks

away, except for purposes of visitation."        There is no indication

in the "Return of Service" portion of the FRO that defendant was

served with the FRO, and he subsequently denied that he was.

     In June 2015, defendant moved to vacate the FRO in Essex

County.      See   
N.J.S.A.   2C:25-29d    (permitting   dissolution      or

modification of an FRO upon a showing of good cause).            The court

refused to hear the application because plaintiff now resided in

Atlantic County, and transferred venue in January 2016.                 For


1
  The JOD also ordered the parties and the child to submit to DNA
testing because defendant did not acknowledge paternity.

                                    2                              A-1636-16T1
reasons unexplained by the record, defendant then filed a new

motion in September 2016 seeking the same relief.

     Defendant certified that he became aware of the FRO when he

applied for a "pistol permit," which was denied because of the

FRO.2 He claimed that he had no contact with plaintiff for "roughly

eighteen years" and was unable to accept a job as a private

security agent because he could not obtain the permit.           Defendant

also demonstrated that he could not furnish transcripts from the

1994 or 1995 court proceedings because the "tapes [and] logs were

purged."

     Plaintiff's certification in opposition included attachments

from the 1990s that she claimed demonstrated defendant's violation

of conditions regarding visitation and his knowledge of the FRO's

existence.   Plaintiff also claimed there were "pending criminal

charges" against defendant.

     Plaintiff certified that she had no contact with defendant

for eighteen years, until 2014, when defendant contacted the

parties' daughter, in alleged violation of the FRO.              Plaintiff

also claimed defendant and his attorney made false allegations in

court   documents   in   an   attempt   to   recoup   past   child   support



2
  Defendant also claimed that he held a firearms purchaser
identification card that was confiscated when he filed his original
motion to dissolve the FRO.

                                    3                                A-1636-16T1
payments.   Plaintiff asserted that "[d]efendant's actions over the

last sixteen months" made it "obvious that [he] still poses a

threat to me and my family."        We need not discuss the reply filed

by defense counsel.

      A hearing on defendant's motion took place on November 7,

2016.   Defendant was represented by counsel and plaintiff appeared

pro se.     After both parties were sworn, the judge heard legal

argument from defense counsel regarding the factors identified in

Carfagno v. Carfagno, 
288 N.J. Super. 424 (Ch. Div. 1995), as

guideposts for the exercise of the court's discretion in dissolving

or modifying an FRO.     Defendant did not testify, except to answer

an occasional question posed by the judge.

      Plaintiff, however, testified at length, first, by reading a

prepared written statement, because she was "really scared," and

then in response to the judge's questioning.             Plaintiff accused

defendant of "repeatedly" lying "to the police, the [c]ourt and

his own attorneys" over the prior twenty years.          Plaintiff claimed

she   was   "still   afraid"   of     defendant   and,   contrary     to   her

certification, said defendant had contacted her after the FRO was

issued, but she never called the police.          The judge asked directly

how   defendant's    contact   with    his   adult   daughter   was    making

plaintiff fearful, and plaintiff responded:          "I believe he's using

her to get information and to compile stuff to harass me through

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these   courts."      Plaintiff     claimed   she   was    "working"       on    an

unspecified criminal complaint against defendant.

     Although defense counsel responded to plaintiff's testimony

with further argument, he never asked to cross-examine plaintiff

or to have defendant testify.

     The judge noted that although there had been no contact

between the parties for at least a decade, plaintiff was "shaking"

during her testimony.       Turning to the Carfagno factors, the judge

found there were no violations of the FRO, no contempt complaints

filed since the FRO issued and no restraining orders issued in

other jurisdictions.        The judge also concluded "there [was] not a

valid   basis   to   find    that   [defendant   was]     abusing   the     legal

process," because requesting emancipation of the parties' daughter

was "not a matter of harassment."

     The judge concluded plaintiff still had

           a deep-seeded concern . . . based upon what
           she alleges the actions of [defendant] back
           when the restraining order was [issued],
           whether he had a knife, whether he shook the
           child, whether he pushed her in the face, are
           all significant matters that do[] still reside
           in [plaintiff's] mind and in her belief that
           she has a fear [of defendant].

                And I do find that for whatever reasons,
           although it . . . ought to perhaps have been
           negated by the ten-year period of time that
           they had no contact, it's apparent that that's
           still something that is affecting [plaintiff].


                                       5                                  A-1636-16T1
                 So for those reasons[,] I find that
            [plaintiff's] fear or her concern for her
            safety still exists, and so for those
            reasons[,] I am going to deny [defendant's]
            request to vacate the [FRO].

Noting plaintiff's claim that she intended to file charges against

defendant, the judge said she was denying defendant's request "at

least until the time that that matter is resolved."           However, she

also told plaintiff that once that "legal issue is over," the

court might

            very well be in a position to grant
            [defendant's]   request   because   at   some
            point . . . you just have to live your own
            lives . . . and it's getting to that point
            soon, except that you're saying there might
            be some litigation, and so for that period of
            time I'm going to leave the restraint in
            place.

     Citing Bresocnik v. Gallegos, 
367 N.J. Super. 178 (App. Div.

2004), defense counsel asked if the judge was finding plaintiff's

fear was "rational." The judge said she was making such a finding,

"based   upon   the   fact   .   .   .   that   .   .   .   I'm   observing

[plaintiff]. . . .     [A]t least at this point in her mind . . .

there is a rational basis for it."        (emphasis added).       The judge

entered an order denying defendant's motion, and this appeal

followed.

     We defer to the trial judge's factual findings when supported

by "adequate, substantial, credible evidence," particularly when


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those findings are based upon the judge's opportunity to observe

the witnesses.   Cesare v. Cesare, 
154 N.J. 394, 411-12 (1998).    We

do not defer, however, to the judge's legal conclusions if they

are based upon a misunderstanding of applicable legal principles.

T.M.S. v. W.C.P., 
450 N.J. Super. 499, 502 (App. Div. 2017)

(citations omitted).

       A judge should consider the Carfagno factors in determining

whether good cause supports a request to modify or dissolve an

FRO.    Sweeney v. Honachefsky, 
313 N.J. Super. 443, 447-48 (App.

Div. 1998).   Those factors are:

           (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, 
288 N.J. Super. at 435.]

Here, the judge recognized that plaintiff did not consent to

vacating the FRO but then found several other Carfagno factors

                                   7                        A-1636-16T1
weighed in defendant's favor.    Indeed, the only factor the judge

considered in deciding not to dissolve the FRO was plaintiff's

professed fear of defendant.

     Defendant argues that the judge erred, because she based her

decision solely on plaintiff's subjective fear of defendant, which

lacked any rational basis.   See Bresocnik, 
367 N.J. Super. at 182-

84 (reversing FRO because the plaintiff's fear lacked any rational

basis).   We agree.

     The Carfagno court emphasized that while the plaintiff's fear

is an important consideration, "courts should focus on objective

fear."    
288 N.J. Super. at 437.    "Objective fear is that fear

which a reasonable victim similarly situated would have under the

circumstances."   Ibid.

     Here, although she found that plaintiff's fear was rational,

the judge qualified that finding by stating it was rational "at

this point in [plaintiff's] mind."     In this regard, the judge

applied the wrong legal standard.

     We note some other concerns.     
N.J.S.A. 2C:25-29d provides

that an FRO may be dissolved or modified upon a showing of good

cause, "but only if the judge who dissolves or modifies the order

is the same judge who entered the order, or has available a

complete record of the hearing or hearings on which the order was



                                 8                          A-1636-16T1
based."   In Kanaszka v. Kunen, 
313 N.J. Super. 600, 606 (App. Div.

1998), we held:

           In cases where the motion judge did not enter
           the final restraining order, . . . the
           "complete record" requirement of the statute
           includes, at a minimum, all pleadings and
           orders, the court file, and a complete
           transcript of the final restraining order
           hearing.   Without the ability to review the
           transcript, the motion judge is unable to
           properly   evaluate   the   application   for
           dismissal.

We further held that the moving party seeking modification or

dissolution must first establish a prima facie case showing good

cause prior to the judge "fully considering the application for

dismissal.   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."     Id. at 608.     The

failure to furnish "the final hearing transcript" was "fatal" to

the defendant's appeal.   Id. at 607.

     We took a step back from that position recently in G.M. v.

C.V., ___ N.J. Super. ___ (App. Div. Jan. 17, 2018).    There, the

trial judge denied the defendant's motion because she could not

produce a copy of the FRO transcript due to the passage of time.

(slip op. at 6).   We reversed and held:

           If the judge is satisfied that reconstruction
           of the record is not feasible, the judge must
           make specific findings describing the reasons
           for this conclusion. In such a case, we hold

                                 9                          A-1636-16T1
            that where a party requesting to modify or
            dissolve a FRO has shown prima facie evidence
            of changed circumstances and where the audio
            record of the FRO hearing is no longer able
            to be transcribed, in whole or in part,
            without the fault of the moving party, the
            judge may conduct a plenary hearing to
            determine    whether   the   party    seeking
            modification or dissolution of the FRO is
            entitled to any relief.

            [(slip op. at 20).]

       Here, defendant demonstrated that no transcripts of the 1994

and 1995 court hearings could be produced because the tapes had

been purged. Defendant was not at fault. Further, from the record

before us, it appears there never was a hearing on the FRO.

Instead, the matrimonial judge took jurisdiction of the DV matter

and entered the FRO based on terms settled upon by the parties as

part   of   the   matrimonial   case.3      It   certainly   appears   that

reconstruction is not feasible.          We also conclude that defendant

made a prima facie showing of good cause for modification.             Ibid.

We therefore vacate the order under review and remand the matter

for a plenary hearing consistent with this opinion and our holding

in G.M., at which the judge shall apply the appropriate legal

standard as to whether plaintiff has an "objective fear" of



3
  In J.S. v. D.S., 
448 N.J. Super. 17, 22 (App. Div. 2016), we
disapproved such a procedure by noting, "[p]ublic policy precludes
the entry, continuation, or dismissal of an FRO as a bargaining
chip in the settlement of other disputes."

                                   10                              A-1636-16T1
defendant,    i.e.,   "fear     which    a    reasonable       victim   similarly

situated would have under the circumstances."               Carfagno, 
288 N.J.

Super. at 437.

      One other issue bears comment.               In reaching her conclusion,

the judge referenced some of plaintiff's allegations regarding the

alleged 1994 incident of domestic violence that led to the issuance

of   the   TRO.   The   judge    based       her    ultimate    decision    almost

exclusively on plaintiff's demeanor during her testimony.

      However, defense counsel never cross-examined plaintiff nor

did defendant ever testify.       We find no particular fault with the

judge in this regard because counsel never specifically asked for

the opportunity to have his client testify or to cross-examine

plaintiff.    However, at the plenary hearing, the court must give

defendant an opportunity to present his own proofs and cross-

examine plaintiff.

      Vacated and remanded.       We do not retain jurisdiction.




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