N.B v. M.C

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                                NOT FOR PUBLICATION WITHOUT THE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-1097-20

N.B.,

         Plaintiff-Respondent,

v.

M.C.,

     Defendant-Appellant.
_______________________

                   Submitted September 15, 2021 - Decided November 22, 2021

                   Before Judges Accurso and Enright.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Family Part, Morris County,
                   Docket No. FV-14-0984-06.

                   The Tormey Law Firm, attorneys for respondent
                   (Brent DiMarco, on the brief).

                   Respondent has not filed a brief.

PER CURIAM

         In this one-sided appeal, M.C. challenges the denial of his motion,

following a plenary hearing, to dissolve a final restraining order his ex -wife,
plaintiff N.B., obtained against him in 2006 pursuant to the Prevention of

Domestic Violence Act,  N.J.S.A. 2C:25-17 to -35. Defendant claims the court

erred in finding he failed to establish good cause to dissolve the order based on

its assessment of the Carfagno1 factors. Because defendant's argument

amounts to nothing more than a quarrel with the judge's fact-finding, which he

has provided us no basis to reject on this record, we affirm.

       N.J.S.A. 2C:25-29(d), the statute that permits a Family Part judge to

dissolve a final restraining order on good cause shown, requires the movant to

provide a complete record of the hearing if the dissolution motion is presented


1
  Carfagno v. Carfagno,  288 N.J. Super. 424, 434-35 (Ch. Div. 1995) (holding
a court should consider eleven factors in considering an application to dissolve
a final restraining order under N.J.S.A. 2C:25-29(d):

            (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).
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to a judge who did not preside over that hearing, as it was here. Defendant,

however, could not produce that record because the hearing was improperly

recorded.2 The judge permitted defendant to proceed on the application

because both parties were available to testify. See G.M. v. C.V.,  453 N.J.

Super. 1, 18 (App. Div. 2018) (permitting a judge to conduct a plenary hearing

to determine if dissolution of a final restraining order is appropriate in cases

where the movant demonstrates the hearing record cannot be transcribed

through no fault of the movant). Notwithstanding, the record is sketchy.

      The parties were married and had a young son at the time of their

divorce in early 2007. That boy is now eighteen. Plaintiff claimed she sought

a temporary restraining order alleging harassment and assault in 2006, after

defendant "pulled [her] down the driveway" at her parents' house when he

came to pick up their son for parenting time. According to plaintiff, defendant

was convicted of violating that temporary restraining order when he went to

her home and peered through the windows when she refused to answer the

door. He was apparently arrested at the scene.


2
  Although defendant submitted a form from a transcription firm stating the
"tape [was] un[-]transcribable [because] recorded at [the] wrong speed,"
plaintiff represented she had listened to the tape to refresh her recollection
before testifying and only the end of the proceeding "was taped at the wrong
speed."
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      Plaintiff testified that although she applied for the restraining order

based on the incident in the driveway, it was entered "on the basis of

harassment." She claimed defendant had presented pictures of injuries to his

arm he claimed plaintiff inflicted by grabbing him, but the judge rejected his

testimony after the police officer at the scene testified defendant's arm "didn't

look like that" after the encounter. She also testified defendant had another

criminal conviction involving a forged 401k document submitted in connection

with one of their retirement accounts.

      Plaintiff testified she opposed the lifting of the restraining order because

she feared defendant, the two lived in the same town, and their son, who had

always been a flashpoint between them, was living with her while attending

college. Plaintiff testified if their son were to do something defendant

disapproved of, believing it was influenced by plaintiff, she feared he would

"come after [her.]" Asked by the court whether she felt there might come a

time in the future when she would not need the protection of the order,

plaintiff replied she didn't know.

      Defendant testified there were never any issues in returning their son

after his parenting time from his perspective, but acknowledged plainti ff

"seemed to have concerns," and once called the police. He testified he had no


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mental health or substance abuse problems, has remarried and has no interest

in having any contact with plaintiff.

        Defendant admitted his conviction for violating the restraining order,

asserting it arose out of the parties' need to co-parent their son. As for the

forgery-related offense, defendant claimed he reported that plaintiff had forged

his name to a 401k release and drained their bank account. When the judge

asked why defendant was convicted if plaintiff had done it, defendant

responded that he couldn't afford an attorney and she could, and she "had her

attorney turn it back on [him] as if [he] signed [and] handed in forged

documents." Defendant claimed his public defender told him he could "plead

it down to a misdemeanor or go to jail." Asked what he told the court when it

asked whether he was guilty, defendant said he "answered guilty," because he

"was scared and penniless at the time" and "[t]hat seemed like [his] only way

out."

        Defendant claimed the restraining order was affecting his job in the

construction industry as a senior estimating manager. He certified "the final

restraining order restricts [him] from visiting client's offices, construction sites

and accessing certain buildings because [he] will not be cleared by security,"




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and he had been "removed from work projects on a military base" because of

the order.

      At the hearing, he testified he had previously been blocked by the

Department of Defense from a job site and that "it's coming up again with [his]

current job." He provided nothing from his employer about the problem ,

however. When the judge asked whether his criminal conviction for violating

the restraining order might not have "much more of an impact upon [his]

security clearance than a civil order like a restraining order," defendant replied

"they just brought up the restraining order. They weren't that detailed about

it." Defendant also testified he and his wife had stopped traveling out of the

country because they "can't get through the border because of this,"

mentioning delays he'd suffered returning from Canada, and Barbados after

doing hurricane relief work.

      After hearing the testimony and argument by defendant's counsel, the

court denied the application on the record after review of the applicable

Carfagno factors. The judge found it particularly significant that while the

restraining order had been entered many years ago, it was based on a physical

altercation between the parties. Although observing it appeared as if the

temporary restraining order might be missing a page detailing the predicate


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act, the judge found it involved some "grabbing and pulling" in the driveway,

apparently sufficient to support a finding of harassment under  N.J.S.A. 2C:33-

4(b).

        The judge found plaintiff sincere that she feared defendant, not in the

sense "that he's going to come over and cause problems for her; but rather, if

there wasn't a restraining order, that this is going to result in some new wave

of problems," because it had "kept the peace" between the two through the

long years of co-parenting their son. And he rejected defendant's contention

that plaintiff had acted in bad faith in opposing the order. He noted plaintiff

explained her concerns in a reasoned way, finding nothing in plaintiff's manner

to suggest "she's being vindictive." The parties' son, although eighteen, was

going to be living with plaintiff while attending college, "and she does not

want to have problems."

        The judge's impression of plaintiff's good faith was reinforced by her

candid answer that she didn't know whether there would come a time when she

would no longer need the order. The judge found plaintiff's response

reasonable, leaving open the possibility there might be less need for the order

when their son graduates from college, and "the parties don't have any contact

with each other."


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      The judge weighed heavily defendant's past conviction for contempt of

the restraining order. Turning to defendant's brief testimony about the order

affecting his security clearances, the judge noted defendant's "got two criminal

convictions on his record." Although defendant testified his employer only

mentioned the restraining order when discussing the issue with him and wasn't

"that detailed about it," the judge expressed doubt that the existence of the

restraining order would figure more prominently than defendant's two criminal

convictions in any concern over a security clearance. Balancing the applicable

Carfagno factors based on the testimony adduced at the hearing, the judge was

satisfied defendant had not carried his burden to show good cause to dissolve

the restraining order.

      Defendant appeals, contending the "trial court's findings and conclusions

are not supported by adequate, substantial, and credible evidence" in the record

and that the "court erred when applying the Carfagno factors." He contends

there was no support for the finding that the final restraining order was based

on a physical altercation, that the court erred in heavily weighting defendant's

contempt conviction, and there is "no testimony, document, or any form of

evidence" to support the court's conclusion that defendant's criminal record is

affecting his inability to secure a security clearance more than the restraining


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                                        8
order. Our review of the record convinces us that none of those arguments is

of sufficient merit to warrant any extended discussion in a written opinion. R.

2:11-3(e)(1)(E).

      Our review of a trial court's factual findings, of course, is limited.

Cesare v. Cesare,  154 N.J. 394, 411 (1998). Findings by the trial court "are

binding on appeal when supported by adequate, substantial, credible

evidence." Id. at 411-12 (citing Rova Farms Resort, Inc. v. Invs. Ins. Co.,  65 N.J. 474, 484 (1974)). Deference is especially appropriate in a case, such as

this one, in which the evidence is almost entirely testimonial and involves

questions of credibility because the trial court's ability to see and hear the

witnesses provides it a better perspective than a reviewing court to judge their

veracity. Id. at 412.

      Guided by those standards, defendant has provided us no basis on which

we could upset the factual findings or legal conclusions of the trial court. The

evidence supporting plaintiff's claim that the final restraining order was based

on a physical altercation was plaintiff's own testimony, which the court found

credible, and defendant did not counter at the hearing. Although defendant

claims the temporary restraining order was based only on harassment and did

not allege a physical altercation, the temporary order alleged assault and


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                                         9
harassment and her description of the facts in that order appears to break off

mid-sentence, prompting the judge's observation that it appeared to be missing

a page. Further, as noted by the judge, a finding of harassment can be based

on "subject[ing] another to striking, kicking, shoving, or other offensive

touching, or threaten[ing] to do so," if done "with purpose to harass another."

 N.J.S.A. 2C:33-4(b); see D.N. v. K.M.,  429 N.J. Super. 592, 598 (App. Div.

2013).

      We find no error in the weight the judge assigned to defendant's

contempt conviction, an obviously important factor in determining defendant's

motion to dissolve the order. See generally State v. Washington,  319 N.J.

Super. 681, 686 (App. Div. 1998) ("An order of a court must be obeyed unless

and until a court acts to change or rescind it.") As to defendant's claim that

nothing supported the court's supposition that defendant's criminal record is

likely to cause him more problems in obtaining a security clearance than a

civil domestic violence restraining order, he overlooks that he presented

nothing from his employer in support of his claim that the final restraining

order was the source of his problem, notwithstanding his burden to establish

good cause for dissolving the order. See Kanaszka v. Kunen,  313 N.J. Super.
 600, 608 (App. Div. 1998). And when queried specifically about it by the


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                                       10
court, conceded his employer wasn't "that detailed about it." Nothing

prohibited the court from applying common sense and experience in drawing

conclusions from the evidence — or its absence — in the record. See State v.

Hoffman,  149 N.J. 564, 577 (1997).

      In sum, because the court's findings and conclusions that defendant

failed to establish good cause for dissolution of the restraining order have

adequate support in the record, we affirm. See Pascale v. Pascale,  113 N.J. 20,

33 (1988).

      Affirmed.




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