L v. v. R.V. ( 2024 )

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NOT FOR PUBLICATION WITHOUT THE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-3446-21
L.V.,
Plaintiff-Respondent,
v.
R.V.,
Defendant-Appellant.
_______________________
Argued March 20, 2024 – Decided April 11, 2024
Before Judges Vernoia and Walcott-Henderson.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Somerset County,
Docket No. FV-18-0531-19.
R.V., appellant, argued the cause pro se.
Respondent has not filed a brief.
PER CURIAM
Plaintiff L.V. and defendant R.V. were married for roughly nineteen
years, had children together, and divorced in 2020.1 On February 28, 2019, the
Family Part granted plaintiff a final domestic violence restraining order (FRO)
against defendant under the Prevention of Domestic Violence Act (PDVA),
N.J.S.A. 2C:25-17 to 35. On the same day, the court also granted defendant an
FRO against plaintiff.2
Defendant appeals from a June 23, 2022 Family Part order denying her
motion to vacate the FRO against her and an August 22, 2022 order denying her
motion for reconsideration. We affirm.
I.
On February 28, 2019, at the conclusion of a multiday trial on plaintiff's
and defendant's cross-complaints for FROs against each other, the Family Part
judge made findings of fact and conclusions of law supporting his decision to
enter FROs against both parties. The court found the parties had a "mutually
abusive relationship" with a prior history of temporary domestic violence
restraining orders against each other, and one prior FRO entered against
1
We use initials to identify the parties because the names of victims of domestic
violence are excluded from public access under Rule 1:38-3(d)(1).
2
The record on appeal includes only the February 28, 2019 FRO entered against
defendant.
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defendant as the result of an incident during which she chased plaintiff while
armed with a knife and made holes with the knife in a mattress. The court also
accepted as credible plaintiff's testimony that defendant had verbally abused him
over the course of their relationship and had been destructive to property during
that time.3
The court also determined that plaintiff and defendant each had
committed the predicate act of harassment against the other by "striking,
kicking, shoving, or offensive[ly] touching" each other during a January 1, 2019
incident for which each party sought the FRO against the other. The court
further found that during the incident, defendant "scratch[ed]" and threw "things
at" plaintiff, causing him injury. The court also concluded defendant acted with
a purpose to harass plaintiff. 4
3
The court accepted defendant's testimony plaintiff had never physically
harmed her, but found plaintiff had been verbally abusive to her, physically
destructive to property during their relationship, and had given defendant a
sexually transmitted disease in 2018.
4
The court also made findings of fact supporting its determination plaintiff
committed the predicate act of harassment against defendant. It is unnecessary
to detail those findings because they are not pertinent to our consideration of the
order denying defendant's motion to vacate the February 28, 2019 FRO entered
against her.
A-3446-21
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Additionally, the court determined an FRO against defendant was
necessary to protect plaintiff from future acts of domestic violence based on the
parties' "[eighteen] or [nineteen] or [twenty] years of dissatisfaction with each
other, with regrets about the marriage, with the constant name calling" and "with
horrible . . . things being said against one another." The court also cited a prior
incident—which resulted in the entry of an FRO against defendant—during
which she had used "a knife [and/or scissors] to . . . rip up a mattress and to cut
up [plaintiff's] clothes."
Based on those findings, the court entered the February 28, 2019 FRO
against defendant. In May 2022, defendant moved to vacate the FRO, arguing
there had been a substantial change in circumstances during the three years that
had passed following the FRO's entry.
In support of her motion, defendant submitted a certification asserting that
following entry of the FRO, she and plaintiff were divorced, they no longer had
a nesting parenting time arrangement by which she and plaintiff alternatively
had their parenting time with their children in the marital home, the marital home
had been sold, and she had undergone counseling for victims of domestic
violence. Defendant also asserted she was three years older, had health issues,
and no longer felt the anger toward plaintiff that had caused their disputes in the
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past. Defendant claimed plaintiff had no reason to fear her and that the court
had erred by issuing the FRO against her in the first instance. Defendant averred
that the pendency of the FRO made it difficult for her to obtain employment ,
gain entry to schools, and engage in volunteer work.
In a certification submitted in response to defendant's motion, plaintiff
asserted he was "in fear of . . . defendant," she "continues to harass [him]," she
has "a mental disorder," and she has "a violent past." Plaintiff also asserted
there was a complaint-warrant pending against defendant alleging "violent acts
with other persons," and the record on appeal includes a July 20, 2021 order
denying the State's motion for pretrial detention on a pending criminal charge
(or charges) in a complaint-warrant against defendant and granting defendant's
release from pretrial detention on conditions. 5 Those conditions include the
requirement defendant have "[n]o [c]ontact with the [v]ictim, directly or
in[]directly to include, text, email, telephonic, [and] in-person." The order in
the criminal case further provides that defendant's contact with "the remaining
children," who are identified as "witnesses" to the charged crime(s), and
5
Although it is not disputed defendant was criminally charged, the record on
appeal does not disclose the number of offenses for which she was charged.
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defendant's "granddaughter," shall be in accord with any orders issued by the
Family Part.6
The record on appeal also includes a May 10, 2022 order entered by the
Family Part in a Title Nine, N.J.S.A. 9:6-8.21 to -8.73, abuse or neglect case
against the parties, continuing physical custody of defendant's children with
plaintiff, requiring defendant to undergo psychiatric and psychological
evaluations, suspending defendant's parenting time with the children, noting
there is a "criminal no contact order for" defendant with one of her children, and
requiring that defendant undergo mental health counseling.
On June 23, 2022, the same judge who had issued the 2019 FRO heard
argument on defendant's motion. Plaintiff appeared and testified he feared
defendant's continuing harassment of him by "calling the police," and "showing
up close to where" he lived. He also testified he feared defendant's actions
would cause him to lose his job due to the frequency he missed work due to their
litigation. Plaintiff testified defendant's conduct "is never going to end until she
gets help," and he opposed her request to vacate the FRO.
6
Defendant does not include those Family Part orders in the record on appeal,
but it is clear from the record presented that orders were entered in Family Part
proceedings under dockets and in proceedings different from those that resulted
in the FRO.
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Defendant called two witnesses at the hearing on the motion, one of whom
testified, in part, that defendant was ineligible to work at the health care facility
at which the witness was employed because of "potential criminal charges"
against defendant. The other witness testified she had seen defendant interact
with her children at their school, she had become friends with defendant, and
she thought defendant was an "exemplary person" who provided love and care
to her children.
Defendant provided scattered, meandering, and, at times, combative
testimony about her request to vacate the FRO. She asserted the New Jersey
Division of Child Protection and Permanency (DCPP) had used the parties'
domestic violence history against her in the pending abuse or neglect case. She
claimed plaintiff, against whom defendant had an FRO, misrepresented the facts
in his opposition to her motion. Defendant further made numerous assertions
supporting her contention the FRO should not have been entered against her in
2019 and therefore should be vacated.
Defendant also asserted plaintiff was responsible for the pending criminal
indictment against her, but the court noted it was a grand jury, and not plaintiff,
that "indict[ed] [her] for child abuse . . . and for assaulting a young child." More
particularly, the court explained it was the grand jury that "found probable cause
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to believe that [defendant] had caused severe personal injury to a daughter that
was in [defendant's] care." The court further noted that it was DCPP, and not
plaintiff, that had filed the pending abuse or neglect complaint against
defendant.
The court rejected defendant's claim that there were substantially changed
circumstances warranting vacatur of the 2019 FRO. The court noted that such
changed circumstances are generally demonstrated by positive developments in
a movant's life following entry of an FRO but concluded defendant had not
sufficiently demonstrated any changed circumstances such that vacatur was
appropriate. The court explained that instead, there had been many negative
changed circumstances—including the return of an indictment against defendant
for "abusing [her] . . . child" and DCPP's removal of defendant's children from
her care based on claims she had abused or neglected them. The court
recognized the criminal charges against defendant had not been resolved and she
enjoyed the presumption of innocence. The court, however, explained it could
not ignore that defendant's changed circumstances—following the issuance of
the 2019 FRO—included the return of an indictment against her for child abuse
and DCPP's removal of her children from her care.
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The court further reviewed each of the factors set forth in Carfagno v.
Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995), pertinent to a determination of
a motion to vacate an FRO. The court made findings as to each factor and
concluded the factors weighed against defendant's request. The court entered
an order denying defendant's motion and this appeal followed.
II.
Our review of a motion to dissolve an FRO is limited. See G.M. v. C.V.,
453 N.J. Super. 1, 11-12 (App. Div. 2018). We review the denial of such a
motion without a plenary hearing for an abuse of discretion. Id. at 11. We give
"substantial deference" to the trial court's factual findings and legal conclusions
in a domestic violence matter, C.C. v. J.A.H., 463 N.J. Super. 419, 428 (App.
Div. 2020), due to the Family Part's "'special jurisdiction and expertise in family
matters,'" G.M., 453 N.J. Super. at 11 (quoting N.J. Div. of Youth & Fam. Servs.
v. M.C. III, 201 N.J. 328, 343 (2010)). We are bound by the trial court's findings
if they are "'supported by adequate, substantial, credible evidence.'" Ibid.(quoting Cesare v. Cesare, 154 N.J. 394, 411-12 (1998)). However, "'[a] trial
court's interpretation of the law and the legal consequences that flow from
established facts are not entitled to any special deference'" and are reviewed de
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novo. Hitesman v. Bridgeway, Inc., 218 N.J. 8, 26 (2014) (quoting Manalapan
Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
An FRO issued under the PDVA "can be modified or dissolved only by
court order upon a showing of good cause." G.M., 453 N.J. Super. at 12; see
also N.J.S.A. 2C:25-29(d). A party requesting the dissolution of an FRO "has
the 'burden to make a prima facie showing [that] good cause exists for
dissolution of the [FRO] prior to the judge considering the application for
dismissal.'" G.M., 453 N.J. Super. at 12-13 (first alteration in original) (quoting
Kanaszka v. Kunen, 313 N.J. Super. 600, 608 (App. Div. 1998)). To sustain that
burden, the party seeking dissolution of the FRO "must show 'substantial
changes in the circumstances' from what existed at the final hearing for the court
to 'entertain the application for dismissal.'" Id. at 13 (quoting Kanaszka, 313
N.J. Super. at 608).
In determining whether a movant has shown good cause, a court must
consider the following factors in accordance with the standard established in
Carfagno:
(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
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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.
[G.M., 453 N.J. Super. at 13 (quoting Carfagno, 388
N.J. Super. at 434-35).]
A court must weigh the Carfagno factors qualitatively, not quantitively,
Carfagno, 388 N.J. Super. at 442, and "carefully scrutinize the record and
carefully consider the totality of the circumstances" before dissolving a FRO,
G.M., 453 N.J. Super. at 14 (quoting Kanaszka, 313 N.J. Super. at 605). To
obtain a plenary hearing on a motion to dissolve a FRO, the movant must make
a prima facie showing that good cause exists for the requested dissolution and
that there "are 'facts in dispute material to a resolution of the motion.'" Id. at 13
(quoting Kanaszka, 313 N.J. Super. at 608).
Defendant's notice of appeal states that she appeals from the FRO entered
against her but, in her brief on appeal, defendant does not argue we should
reverse the FRO. We therefore do not address her putative appeal from the FRO,
see Drinker Biddle & Reath LLP v. N.J. Dep't of L. & Pub. Safety, 421 N.J.
Super. 489, 496 n.5 (App. Div. 2011) (explaining an issue not briefed on appeal
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is deemed abandoned), other than to note the time within which any appeal from
the February 28, 2019 FRO may have been taken has long passed, see R. 2:4-
1(a) (providing generally that appeals from final judgments or orders "shall be
filed within [forty-five] days of their entry"). As such, even if defendant had
argued we should reverse the FRO based on a putative attempt to appeal from
its entry, we reject the claim because any such appeal is untimely.
Defendant's brief on appeal is otherwise replete with claims that the court
erred by entering the FRO in the first instance. Those arguments are made in
support of defendant's contention she is entitled to vacatur of the 2019 FRO.
That is, one of defendant's primary contentions is that she is entitled to a vacatur
of the FRO because the court should have never entered the FRO.
We reject the argument and its many varied iterations in defendant's brief
because, as we have explained, defendant did not appeal from the FRO and the
time for any proper appeal expired in 2019. As such, we find it unnecessary to
address defendant's numerous assertions the court erred by entering the FRO and
limit our analysis to defendant's claims related to the only orders from which an
appeal was timely taken—the June 23, 2022 order denying her motion to vacate
the 2019 FRO and the August 22, 2022 order denying her motion for
reconsideration.
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As noted, we review an order denying a motion to vacate an FRO for an
abuse of discretion. G.M., 453 N.J. Super. at 11. A court abuses its discretion
when its "decision [was] made without a rational explanation, inexplicably
depart[s] from established policies, or rest[s] on an impermissible basis." United
States v. Scurry, 193 N.J. 492, 504 (2008) (first alteration in original) (quoting
Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). Measured against
this standard, we discern no abuse of discretion in the court's denial of
defendant's motion.
Defendant's claim the court erred by finding she failed to establish a
substantial change in circumstances warranting vacatur of the FRO is founded
on a myriad of contentions that are undermined by, contradicted by, or find no
support in the record. Defendant first claims she was "taken aback" by the
court's "request[]" that the parties mutually withdraw their respective FROs
against each other. The claim is undermined by the record. The court never
requested that the parties withdraw their FROs. Instead, at the outset of the
hearing on defendant's motion, and based on information included in plaintiff's
opposition to defendant's motion, the court inquired only if the parties had
considered mutual dismissal of their FROs. When both parties indicated they
were not interested in doing so, the court stated, "[t]hat's fine," and proceeded
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to address defendant's motion on the merits. Contrary to defendant's claim, the
court never requested dismissal of either or both FROs.
Defendant also argues the court ignored that in support of her motion to
vacate the FRO, she had asserted that "during her whole life" she had
volunteered to work at childcare centers, "girl scouting," with the elderly, with
developmentally disabled children, and in other similar capacities. Defendant
ignores that those activities did not constitute changed circumstances following
the 2019 FRO because, as averred by defendant, she had participated in those
activities during her "whole life," and, as such, participated in them during the
time she was engaged in the history of domestic violence with plaintiff,
including the January 1, 2019 predicate act of domestic violence, that in part
provided the basis for the entry of the FRO. Most simply stated, defendant's
asserted history of volunteer service had not prevented her from engaging in the
acts of domestic violence that supported the entry of the FRO, and her continued
involvement in that service following entry of the FRO did not constitute any
change in circumstances at all.
Defendant further argues that continuation of the FRO against her is
unconstitutional because it is punitive and has resulted in a separation of her
from one of her children for "more than a year." The argument is devoid of
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merit. The FRO does not include require any separation of defendant from any
of her children. In contrast, the July 20, 2021 order entered by the Criminal Part
granting defendant's release from custody on the pending criminal charge(s)
against her includes a "no contact" requirement with one of her children but
otherwise permits visitation by defendant with her other children in accordance
with Family Part orders issued in matters unrelated to the disposition of the
FRO.7
Defendant also argues that the court erred by failing to consider that
plaintiff and defendant moved on in their lives following entry of the FRO, "are
amicably separated and no longer see each other," and she no longer fears
plaintiff "or feels any resentment towards him" as grounds supporting vacatur
of the FRO. Defendant then incongruously argues plaintiff committed perjury
during the FRO trial, made "meritless false allegations," and has misused the
FRO as a "weapon" and tool of "oppression" against her in a "manipulative and
malicious[]" manner. In other words, defendant argues she is entitled to vacatur
of the FRO because she no longer holds any animosity toward plaintiff and then
wholly undercuts the claim by offering multiple reasons supporting a finding
7
As previously noted, those Family Part orders are not included in the record
on appeal.
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she continues to have animosity against him. Moreover, defendant's claims
ignore that plaintiff opposed her request to vacate the FRO and the court
determined plaintiff credibly testified he continues to fear that plaintiff will
commit future acts of domestic violence if the FRO is vacated.
We are therefore convinced the court correctly determined defendant
failed to present sufficient evidence establishing a substantial change in
circumstances warranting or permitting vacatur of the FRO. We reach that
conclusion without regard to the court's finding defendant's post-FRO arrest, the
pending criminal charge(s) against her, and DCPP's removal of the children from
her care in the pending Title Nine litigation constituted the "antithesis" of a
change in circumstances permitting the requested vacatur. We are satisfied that
even independent of those circumstances, the court correctly determined
defendant failed to sustain her burden of establishing the requisite substantial
change in circumstances such that we affirm the court's denial of the motion on
that basis alone. G.M., 453 N.J. Super. at 12-13.
In her brief on appeal, defendant mentions the court's consideration of the
Carfagno factors but makes no showing the court's findings are not supported
by the evidence presented at the hearing, the court failed to correctly apply the
law, or the court's weighing of the factors was in error. See Scurry, 193 N.J. at
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504. Based on our review of the court's findings and weighing of the factors,
all of which are supported by substantial evidence the court found credible, we
discern no basis to conclude the court abused its discretion by denying
defendant's motion and, accordingly, we affirm the court's order.
Because we find no error in the court's order denying defendant's motion
to vacate the FRO, it is unnecessary to address defendant's claim the court erred
by denying her motion for reconsideration of the order. To the extent we have
not expressly addressed any of defendant's remaining arguments, we note that
we have considered each and find they are without sufficient merit to warrant
discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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