C.A. v. J.E.A. (FV-13-0182-20, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2022 )

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NOT FOR PUBLICATION WITHOUT THE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-4512-19
C.A.,
Plaintiff-Respondent,
v.
J.E.A.,
Defendant-Appellant.
________________________
Submitted December 2, 2021 – Decided March 10, 2022
Before Judges Mawla and Mitterhoff.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Monmouth County,
Docket No. FV-13-0182-20.
Nicholas A. Moschella, Jr., attorney for appellant.
Legal Services of New Jersey, attorneys for respondent
(Shoshana E. Gross, of counsel and on the brief).
PER CURIAM
Defendant J.E.A. appeals from a July 7, 2020 order denying his motion to
dissolve a final restraining order (FRO) pursuant to the Prevention of Domestic
Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm, substantially for
the reasons set forth in Judge Angela White Dalton's thoughtful oral opinion.
We add the following comments.
On August 1, 2019, plaintiff obtained a temporary restraining order (TRO)
in Holmdel Township Municipal Court. Plaintiff alleged "defendant followed
her throughout the house[,] screaming and cursing at her for the past three
weeks[,]" "defendant drinks to excess and becomes violent[,]" and "defendant
will throw household items around causing damage to the residence." That same
day, defendant was arrested and served with the TRO.
After defendant failed to appear for the August 6, 2019 trial, the judge
entered an FRO against defendant by way of default based on plaintiff's
testimony. She found defendant was properly served on August 1, 2019 and
released from jail on August 5, 2019. The judge also ordered defendant to
submit the results of his most recent alcohol evaluation, maintain support of the
household, and complete a domestic violence batterer's abuse counseling
program. Defendant did not appeal the entry of the FRO.
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On May 22, 2020, defendant moved to dissolve the FRO. 1 At the July 7,
2020 motion hearing, defendant admitted that he had attended only twenty-seven
of the approximately forty-one mandatory counseling visits with a batterer's
intervention program. The judge referred to a letter from the program indicating
that defendant was "calculating and superficially compliant." She also
considered credit card statements provided by plaintiff showing that, between
November 8, 2019 and June 12, 2020, defendant made purchases of liquor
totaling $1,973.55. The purchases began two weeks after he completed his
alcohol use treatment program. Defendant admitted making the purchases but
claimed they were for his friends in his ping-pong and golf groups. Plaintiff's
certification opposed the dissolution of the FRO because she remained fearful
of defendant.
After addressing each of the Carfagno 2 factors, Judge Dalton rendered her
oral decision denying the application without a plenary hearing. She concluded
that defendant's certification failed to raise any material issue of disputed fact
requiring a hearing.
1
On December 11, 2019, Judge Dalton denied a prior motion to vacate the FRO
alleging defendant never received notice.
2
Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).
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On appeal, defendant presents the following arguments for our
consideration:
POINT I
THE DEFENDANT WAS DENIED A FULL AND
FAIR HEARING ON THE MERITS AND SHOULD
BE GRANTED A NEW HEARING BASED UPON
THE RELEVANT FACTORS PURSUANT TO
CARFAGNO . . . .
A. The Carfagno Factors were improperly
applied to Defendant.
Our review of a trial judge's fact-finding function is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). A judge's findings of fact are "binding on
appeal when supported by adequate, substantial, credible evidence." Id. at 411-
12. We will not disturb a judge's factual findings unless convinced "they are so
manifestly unsupported by or inconsistent with the competent, relevant[,] and
reasonably credible evidence as to offend the interests of justice[.]" Rova Farms
Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v.
Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). We, however,
review de novo "the trial judge's legal conclusions, and the application of t hose
conclusions to the facts[.]" Elrom v. Elrom, 439 N.J. Super. 424, 433 (App.
Div. 2015) (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).
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Pursuant to N.J.S.A. 2C:25-29(d), "[u]pon good cause shown, any final
order may be dissolved or modified . . . ." "Generally, a court may dissolve an
injunction where there is 'a change in circumstances [whereby] the continued
enforcement of the injunctive process would be inequitable, oppressive, or
unjust, or in contravention of the policy of the law.'" Carfagno, 288 N.J. Super.
at 433-34 (alteration in original) (quoting Johnson & Johnson v. Weissbard, 11
N.J. 552, 555 (1953)). "Only where the movant demonstrates substantial
changes in the circumstances that existed at the time of the final hearing should
the court entertain the application for dismissal." Kanaszka v. Kunen, 313 N.J.
Super. 600, 608 (App. Div. 1998).
In determining whether a defendant has demonstrated a change of
circumstances sufficient to dissolve an FRO, courts consider the following
factors:
(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
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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.]
The defendant bears the burden of pointing to facts in dispute that are
material to the resolution of the motion in order to be granted a plenary hearing.
Kanaszka, 313 N.J. Super. at 608. Conclusory allegations will not suffice. Ibid.
With these guiding principles in mind, we reject defendant's assertion that
he was entitled to a plenary hearing. The judge carefully considered the
Carfagno factors and made detailed findings as to why defendant had not made
a prima facie showing of a substantial change in circumstances. Most notably,
the undisputed facts are that the FRO had been in place for less than a year and
defendant had not completed a significant number of his required batterer's
intervention sessions. Nothing in defendant's certification dispelled the
program's letter indicating defendant was, as the judge described it, "phoning it
in" rather than accepting responsibility for his conduct. It is undisputed that
shortly after completing alcohol use treatment, defendant began making regular
purchases of alcohol, undermining his bald assertion that he had stopped
drinking. It is undisputed that plaintiff opposes the application. Defendant's
wish to cross-examine plaintiff on whether she remains subjectively afraid does
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not warrant a hearing. The judge found that under the circumstances any
objectively reasonable victim would remain afraid given the short time that had
elapsed and defendant's lack of progress toward resolving the issues that led to
the initial entry of the FRO. We conclude that Judge Dalton's factual findings
are amply supported by the record and her legal conclusions are sound. We
discern no error requiring reversal.
Affirmed.
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