STATE OF NEW JERSEY VS. GUILERMO SANTAMARIAÂ (10-10-1436, MIDDLESEX COUNTY AND STATEWIDE)(RECORD IMPOUNDED)Â

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2012-15T3
E.M.,
Plaintiff-Respondent,
v.
F.M.,
Defendant-Appellant.
______________________________________________
Argued January 31, 2017 – Decided March 2, 2017
Before Judges Yannotti and Fasciale.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Morris County,
Docket No. FV-14-0505-89.
Ali Y. Ozbek argued the cause for appellant
(Rutgers Law Associates, attorneys; John M.
Boehler, on the briefs).
John M. Mills III, argued the cause for
respondent (Mills & Mills, P.C., attorneys;
Mr. Mills, on the brief).
PER CURIAM
Defendant appeals from an order entered by the Family Part
on November 30, 2015, which denied without prejudice his motion
to dissolve a domestic violence final restraining order (FRO). For
the reasons that follow, we reverse and remand the matter to the
trial court for further proceedings.
I.
Plaintiff and defendant were married and they had three
children. On November 15, 1988, plaintiff filed a domestic violence
complaint in the trial court. The complaint was filed under the
Prevention of Domestic Violence Act (PDVA), which was enacted in
1981 and codified at N.J.S.A. 2C:25-1 to -16, but later repealed
and replaced by N.J.S.A. 2C:25-17 to -35. L. 1991, c. 261, § 20.
In her complaint, plaintiff alleged that on November 9, 1988,
defendant had been "physically and verbally abusive" to her.
Apparently, at that time, the parties were residing in New York
State.
Plaintiff asserted that she obtained a restraining order from
a court in New York, but defendant violated the order and spent a
night in jail. Plaintiff then fled to her sister's home in New
Jersey with two of the children, who were minors at that time. She
alleged that defendant called her there and threatened to take the
children from her.
A judge issued a temporary restraining order (TRO) dated
November 15, 1988. The TRO enjoined defendant from having any
contact with plaintiff or harassing plaintiff or her relatives.
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The TRO granted plaintiff temporary custody of the two minor
children, and stated that the issue of defendant's visitation
rights would not be considered until the hearing on the FRO, which
was scheduled for November 23, 1988. On December 1, 1988, the
court entered an order stating that the hearing on the FRO was re-
scheduled for December 8, 1988, "with the consent of the
attorneys."
It appears that the trial court considered plaintiff's
application for a FRO on December 8, 1988. The court entered an
order on that date, which prohibited defendant from having any
contact with plaintiff or harassing plaintiff or her relatives.
The December 8, 1988 order awarded plaintiff temporary custody of
the minor children, but granted defendant supervised visitation
in New Jersey.
The order precluded the parties from removing the children
from New Jersey without the court's permission, and stated that
plaintiff would have custody of the children until the court makes
a decision on the custody issue. The order stated that it had been
served upon defendant's attorney.
The trial court also entered orders on December 22, 1988,
February 9, 1989, March 3, 1989, and March 9, 1989, which amended
the FRO. Among other things, the orders addressed defendant's
visitation with the children. The orders of December 22, 1988, and
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March 9, 1989, noted that they had been served upon defendant's
attorney.
On April 13, 2015, defendant filed a motion in the trial
court to vacate the FRO. In support of his motion, defendant
submitted a certification in which he stated that on November 1,
1994, a New York court had dissolved his marriage to plaintiff.
Defendant asserted that he had attempted to obtain from the court
transcripts of all proceedings relating to the FRO that were held
in 1988 and 1989, but he was informed that the record of those
proceedings was no longer available.
Defendant also stated that he had hired a private investigator
to locate his children, and the investigator gave him addresses
for all three children. He asserted that in March 2006, he went
to a residence in Budd Lake, believing it was his son's home, and
a woman answered the door. Defendant claimed he was not aware that
the woman with whom he was speaking was his former wife. He stated
that with the exception of that encounter, he did not have any
contact with plaintiff since 1989 and that he had never violated
the FRO.
In addition, defendant asserted that he was then seventy
years old, and had many health problems, including congestive
heart failure, and diabetes, which has caused a partial paralysis
of the sciatic nerves in both legs. Defendant said he does not use
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drugs or alcohol, and he has not been convicted of any crimes
since the FRO was entered.
Defendant further claimed that when he and his current wife
return to the United States from traveling abroad, they are taken
into custody because of the FRO. He asserted that he is detained
for long periods of time and "treated like a criminal." Defendant
said he travels each year to Taiwan, and claimed that the treatment
he faces when returning to the United States makes him reluctant
to leave the country. On occasion, he also travels internationally
on work-related business.
Plaintiff opposed defendant's application and submitted a
certification to the trial court. In her certification, plaintiff
stated that her entire marriage to defendant was "laced with
violence and threats directed to [her]." She claimed defendant
called her "brain dead" and a "stupid moron."
Plaintiff said the incident that led to the issuance of the
FRO was a dispute over money that defendant allegedly spent on
prostitutes. She stated that defendant began to threaten her and
her son tried to protect her. According to plaintiff, defendant
"smashed" her son into the wall of their home, and when her son
ran upstairs, defendant screamed at him. Plaintiff said her son
"ended up running away and our two young daughters were completely
traumatized."
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Plaintiff stated that defendant directed many acts of
violence at her. She said defendant had thrown her against the
stove and attempted to strangle her. She claimed his conduct "has
been so evil" that none of the children want anything to do with
him.
Plaintiff also stated that although the conduct that resulted
in the FRO occurred many years ago, she still required the FRO.
She said defendant had conducted himself in a "most awful and
hideous manner." According to plaintiff, defendant paid little or
no child support and defied the New York court's order on equitable
distribution. Plaintiff stated that generally, defendant did as
he pleased "and got away with it."
Plaintiff noted that about five years before, defendant had
appeared at her home in Budd Lake. She was inside, attending to
household work, when she heard a loud pounding on the front door.
Plaintiff stated that she answered the door and was shocked to see
defendant. He identified himself and said he wanted to see his
son. Plaintiff asserted that she "was scared to death." She stated
that she was in shock and told defendant the person he was looking
for did not live there.
Plaintiff said that, in view of the history of violence that
defendant had directed at her, "coupled with his relatively recent
and aggressive unannounced and uninvited appearance at [her]
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home," she has "an objective fear" of defendant. She stated that
the court should continue the protection provided to her in the
FRO.
One of plaintiff's daughters also submitted a certification
to the court. She stated that said defendant "verbally and
physically" abused plaintiff almost every day she was married to
defendant. She claimed that her first memory as a child was of
defendant strangling her mother. She said that after she fled with
her mother, defendant had "haunted" them.
Plaintiff's daughter also asserted that even after her
parents divorced, defendant remained "a threat." She stated that
in the previous ten years, defendant hired private investigators
to find her and her siblings. She asserted that on more than one
occasion, defendant "would just show up at our residences or places
of employment." She said defendant is dangerous, unpredictable,
and remains a threat to her mother.
II.
On April 13, 2015, the Family Part judge heard oral argument
on defendant's motion. The motion judge was not the judge who
entered the original FRO. Plaintiff's attorney advised the motion
judge that plaintiff did not consent to dissolution of the FRO.
The judge entered an order denying the motion without prejudice.
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In a statement of reasons attached to the court's order, the
motion judge noted that N.J.S.A. 2C:25-29(d) allows the court to
dissolve or modify a FRO, "but only if the [j]udge who dissolves
or modifies the order is the same [j]udge who entered the order,
or has available a complete record of the hearing or hearing on
which the order was based." The motion judge also noted that in
Kanaszka v. Kunen, 313 N.J. Super. 600, 606-07 (App. Div. 1998),
we held that the term "complete record" in N.J.S.A. 2C:25-29(d)
includes, among other things, a complete transcript of the hearing
on the FRO.
The judge observed that the court's file on the FRO contained
little documentation, and the FRO did not identify the predicate
act or acts upon which the order was based. The judge also observed
that defendant could not provide a complete transcript of the FRO
hearing because the county had purged the records related to the
FRO.
The judge determined that without the ability to review the
transcript of the FRO hearing, the court was not authorized to
provide relief under N.J.S.A. 2C:25-29(d). The judge rejected
defendant's contention that he had substantially complied with the
statute. The judge also rejected defendant's contention that the
court should conduct a plenary hearing on the motion, in the
exercise of its equitable powers.
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On appeal, defendant argues that: (1) the court's application
of the "complete record" standard in N.J.S.A. 2C:25-29(d) violates
the prohibition on ex post facto legislation; (2) the trial court
failed to consider that the Legislature's intent was to provide
individuals the opportunity to be relieved of the restraints in a
FRO; (3) the court's ruling violated his due process rights; (4)
the court's decision should be reversed because he substantially
complied with the "complete record" requirement of N.J.S.A. 2C:25-
29(d); and (5) the procedural requirements in N.J.S.A. 2C:25-29(d)
should not have been applied because only the Supreme Court has
the authority to prescribe the procedures for the New Jersey
courts.
III.
As the motion judge noted, N.J.S.A. 2C:25-29(d) provides
that:
Upon good cause shown, any final order may be
dissolved or modified upon application to the
Family Part of the Chancery Division of the
Superior Court, 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 based.
In Kanaszka, we held that in determining whether a party has shown
good cause to dissolve or modify a FRO, the court must consider
the factors identified in Carfagno v. Carfagno, 288 N.J. Super.
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424 (Ch. Div. 1995). Kanaszka, supra, 313 N.J. Super. at 607. The
Carfagno 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, supra, 288 N.J. Super. at 434-35.]
Here, the motion judge also noted that in Kanaszka, we held
the "complete record" requirement in N.J.S.A. 2C:25-29(d)
includes, at a minimum, "all pleadings and orders, the court file,
and a complete transcript of the [FRO] hearing." Kanaszka, supra,
313 N.J. Super. at 606.
In Kanaszka, we stated that unless the motion judge has the
ability to review the transcript, the judge would not be able "to
properly evaluate" a motion to dissolve or modify the FRO. Ibid.
We held that the trial court may deny a motion to dissolve or
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modify a FRO if the movant fails to provide the court with the
transcript of the FRO hearing. Id. at 607.
We pointed out that in order to properly consider the Carfagno
factors, the judge who did not issue the initial FRO must
thoroughly review the parties' previous history of domestic
violence in order "to fully evaluate the reasonableness of the
victim's continued fear of the perpetrator." Ibid. (citations
omitted). The court also may consider any incidents of domestic
violence that were the subject of testimony at the final FRO
hearing. Ibid. We noted that such evidence could be significant
if the defendant had consented to the allegations in the domestic
violence complaint, or did not contest the application. Ibid.
In this matter, plaintiff obtained a domestic violence FRO
in 1988, pursuant to the terms of the PDVA then in effect. The
PDVA then provided in pertinent part that the Family Part could
dissolve or modify a FRO upon a showing of good cause. N.J.S.A.
2C:25-14(h) (repealed by L. 1991, c. 261, § 20). See L. 1987, c.
356, § 5.
Here, the judge applied the requirements of N.J.S.A. 2C:25-
29(d), because the provisions of the PDVA in effect when the FRO
was issued were thereafter repealed and replaced by the provisions
of the PDVA presently in effect. Consequently, N.J.S.A. 2C:25-
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29(d) now provides the only statutory authority for dissolving or
modifying a domestic violence FRO.
As we have noted, the motion judge denied defendant's motion
to dissolve the FRO because defendant had not provided the court
with the "complete record," including the full transcript of the
FRO hearing. In reaching this decision, the judge relied upon our
decision in Kanaszka. However, Kanaszka does not address the
situation presented in this case.
In Kanaszka, the transcript of the FRO hearing was available,
while in this case, defendant is not able to provide the transcript
because the county had discarded the record of the FRO proceedings.
It is unclear whether defendant contested the order when it was
entered. Furthermore, it is not clear whether defendant appeared
at the hearing on the FRO, although the record indicates that he
was represented in that proceeding by an attorney. It also is
unclear whether the court heard any testimony before entering the
FRO.
We conclude that under these circumstances, the motion judge
should not have denied defendant's motion because he failed to
provide the court with the transcript of the FRO hearing. If no
testimony was taken when the court entered the FRO, or if plaintiff
cannot recall the testimony she provided, the judge should then
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consider the motion based on the "complete record" that presently
exists.
If, however, plaintiff provides a certification stating that
testimony was, in fact, taken in support of her application for a
FRO, and she recalls her testimony, the judge should endeavor to
reconstruct the record, using a process similar to that described
in Rule 2:5-3. The rule applies to appeals where "a verbatim record
made of the proceedings has been lost, destroyed or is otherwise
unavailable[.]" Ibid.
We emphasize that the purpose of any reconstruction of the
record would be to determine the testimony that plaintiff presented
in that proceeding. Reconstruction of the record is not an
opportunity for defendant to litigate the issuance of the FRO,
particularly if he did not contest the entry of that order or
testify at that proceeding.
We also emphasize that the burden of showing good cause to
dissolve the FRO remains with defendant. It is his burden to
establish that, upon consideration of the Carfagno factors, the
FRO should be dissolved. If the record that presently exists does
not provide a basis for vacating the FRO, the motion must be
denied.
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We therefore reverse the order denying defendant's motion,
and remand the matter to the trial court for further proceedings
on the motion.
IV.
Defendant also argues that the application of the "complete
record" standard in N.J.S.A. 2C:25-29(d), with the requirement
that he submit a complete transcript of the final FRO hearing,
violates the prohibition on ex post facto legislation. The
contention is without sufficient merit to warrant extended
comment. R. 2:11-3(e)(1)(E). However, we add the following brief
comments.
As we stated previously, the PDVA in effect when the FRO was
entered authorized the trial court to dissolve or modify a FRO,
but it did not specifically require the movant to provide the
court with a "complete record" of the FRO proceedings if the judge
hearing the motion was not the judge who entered the initial order.
Nevertheless, a court could have required the movant to provide a
full record, so that it could properly assess whether the FRO
should be dissolved or modified.
As noted, N.J.S.A. 2C:25-29(d) was part of the changes to the
PDVA which were enacted in 1991, and the statute added the
provision that, in certain circumstances, the movant must provide
the court with a "complete record" on a motion to dissolve or
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modify a FRO. This was not, however, a substantive change in the
requirements for obtaining dissolution or modification of a FRO.
The PDVA as amended in 1991 only made specific what was implicit
in the PDVA before the 1991 amendments. As we stated previously,
the court had the authority to compel the movant to provide the
full record of the FRO proceedings. Indeed, it may fairly be said
that the court was always required to make its decision on a
"complete record."
Furthermore, a domestic violence FRO is essentially civil in
nature. J.D. v. M.D.F., 207 N.J. 458, 474 (2011) (citing Crespo
v. Crespo, 408 N.J. Super. 25, 32-34 (App. Div. 2009), aff'd o.b.,
201 N.J. 207 (2010)). More important, the "complete record"
requirement in N.J.S.A. 2C:25-29(d) is not punitive in purpose of
effect, when applied to a FRO issued before that statute was
enacted. See Riley v. N.J. State Parole Bd., 219 N.J. 270, 285-86
(2014) (noting that the constitutional bar against ex post facto
punishments may be applied to a civil measure if the purpose or
effect of the measure is punitive in nature) (citation omitted)).
We therefore conclude that the application of the "complete
record" requirement in N.J.S.A. 2C:25-29(d) to a FRO entered
pursuant to the PDVA before the statute was enacted is not a
violation of the constitutional proscription on ex post facto
legislation.
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Defendant further argues that the "complete record"
requirement in N.J.S.A. 2C:25-29(d) is a matter of procedure that
impermissibly infringes upon the Supreme Court's plenary authority
under the New Jersey Constitution to make rules governing practice
and procedure in the State's courts. N.J. Const., Art. VI, § II,
¶ 3; Winberry v. Salisbury, 5 N.J. 240, 247 (1950), cert. denied,
340 U.S. 877, 71 S. Ct. 123, 95 L. Ed. 838 (1950). We disagree.
The requirement that a movant submit a "complete record" on
a motion to dissolve or modify a FRO is a matter of substance, not
procedure. As we explained in Kanaszka, when the judge hearing a
motion to dissolve or modify a FRO is not the judge who entered
the initial order, the "complete record" is required of the
proceedings that led to the issuance of the FRO so that the court
can properly evaluate the merits of the application. Kanaszka,
supra, 313 N.J. Super. at 606.
In view of our decision, we need not consider defendant's
other arguments: that the trial court erred by failing to consider
the Legislature's intent in providing parties an opportunity to
seek relief from a FRO; that he substantially complied with the
statute; and that denial of his motion on procedural grounds
deprived him of due process.
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Reversed and remanded to the trial court for further
proceedings in conformity with this opinion. We do not retain
jurisdiction.
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