J.R. VS. Y.L. (FV-13-0683-13, MONMOUTH COUNTY AND STATEWIDE)(RECORD IMPOUNDED)

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NOT FOR PUBLICATION WITHOUT THE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-3421-15T3
J.R.,
Plaintiff-Appellant,
v.
Y.L.,
Defendant-Respondent.
____________________________
Submitted August 30, 2017 – Decided November 2, 2017
Before Judges Alvarez and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Chancery Division, Family Part,
Monmouth County, Docket No. FV-13-0683-13.
J.R., appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Plaintiff requests our review of a March 2, 2016 Family Part
order, which denied his application to reinstate a final
restraining order (FRO) entered against defendant on his behalf,
pursuant to the Prevention of Domestic Violence Act of 1991 (PDVA),
N.J.S.A. 2C:25-17 to -35. Previously, we reversed the dissolution
of the FRO and remanded for further proceedings. Based on our
review of the record in the prior appeal, we noted "[t]he
certification submitted by defendant in support of her motion to
dissolve the FRO was inadequate to explain either the parties'
history relative to the FRO, or her reasons for seeking its
dissolution[,]" and "[w]e s[aw] no sworn testimony from plaintiff
explaining his reasons for objecting to the dismissal of the FRO."
J.R. v. Y.R., No. A-2464-14T3 (App. Div. Feb. 9, 2016) (slip op.
at 4).
We determined that "[a]lthough the judge in his written
statement of reasons cited to Carfagno [v. Carfagno, 288 N.J.
Super. 424 (Ch. Div. 1995)] as a touchstone, his discussion was
minimal." J.R. v. Y.R., No. A-2464-14T3 (App. Div. Feb. 9, 2016)
(slip op. at 5). We concluded "[t]he judge lacked enough
information to even make any findings of fact, much less to draw
his somewhat subjective conclusions from the facts, such as that
plaintiff was not in fear, or that neither party was acting in
good faith." Ibid. "Because of the scant record," we remanded
"for further proceedings so that the issues [could] be fully
developed in compliance with due process and Rule 1:7-4(a)." J.R.
v. Y.R., No. A-2464-14T3 (App. Div. Feb. 9, 2016) (slip op. at 5).
On remand, the trial court conducted a plenary hearing and entered
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an order denying reinstatement of the FRO. For the reasons that
follow, we affirm.
At the remand hearing before the same judge,1 plaintiff
testified that he and defendant were unmarried but lived together
in a romantic relationship for four years. They had a child who
was five years old at the time of the hearing. After plaintiff
moved out in February 2012, the parties shared joint legal and
physical custody of their daughter based on an order issued in
ongoing domestic relations proceedings under a non-dissolution or
FD docket.2 Pursuant to that order, they followed a parenting
time schedule with weekly custody exchanges occurring at the
Monmouth County Courthouse, despite the fact that plaintiff
resided in Elizabeth and defendant resided in Toms River.
Plaintiff testified about domestic violence incidents that
occurred during their cohabitation and continued after he moved
out. Specifically, plaintiff testified that defendant "stalked"
1
We note that although the judge characterized the remand
proceeding as "essentially, a motion to reinstate the restraining
order that [plaintiff] formerly had," because we reversed the
judge's order dissolving the FRO, procedurally, the FRO was
reinstated by virtue of our reversal, and the hearing was actually
a motion to dissolve the FRO ab initio.
2
The non-dissolution or FD docket provides a mechanism for
parents not married to each other to seek custody, parenting time,
paternity, and child support. R.K. v. D.L., 434 N.J. Super. 113,
131 (App. Div. 2014).
3 A-3421-15T3
him and "assaulted" him on two occasions. The second assault
occurred in the police station during a custody exchange and
ultimately led to the issuance of the FRO on November 9, 2012, by
a different judge. Plaintiff explained that the FRO hearing was
adjourned twice at defendant's request. When defendant failed to
appear on the rescheduled date, the FRO was issued in her absence.
Over the next two years, defendant filed two motions for
reconsideration, both of which were denied. According to
plaintiff, defendant provided conflicting testimony during the
motions for reconsideration and accused him of committing acts of
domestic violence against her. Defendant also filed four motions
to vacate the FRO with four different judges, until the FRO was
eventually vacated on December 19, 2014, prompting plaintiff's
first appeal.
According to plaintiff, after the FRO was vacated, there were
two incidents that occurred in November and December 2015, during
which defendant "showed up at [his] residence twice,
unannounced[.]" Although plaintiff initially testified that
defendant had "no reason to be there[,]" he later explained that
"[s]he actually dropped off [their] daughter, unannounced, . . .
off of the schedule," and at the wrong drop-off location. Although
"there was no contact" between the parties on either occasion,
plaintiff explained he still did not "feel comfortable" with "her
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just popping up to [his] residence[,]" given their history.
Plaintiff confirmed that since December 2015, their only contact
has been e-mail exchanges regarding their daughter.
Plaintiff also testified that defendant suffers from "bipolar
disorder, and she frequently goes off her psychotropic
medications[.]" According to plaintiff, "given the history," "her
propensities for going off of her medication," and "the ongoing
custody litigation," he needed the restraining order for his
protection because he is afraid that if "[they] get a result from
the custody litigation that's not in her favor[,] she's going to
launch another attack against [him]." Otherwise, "if [they] didn't
have a daughter together [he] would be fine living out of state,
and vacating the restraining order[.]"
Defendant testified there was "no need for a restraining
order" because "[plaintiff] is not afraid" of her. She believed
"everything was fine." She admitted dropping their daughter off
at plaintiff's house but explained she was in Elizabeth caring for
her sick mother. She denied that the drop-off was unannounced
because she would normally send an e-mail, but sometimes the e-
mails would "bounce back." She testified that since December
2014, when the FRO was vacated, they had been exchanging custody
"without any supervision" at locations other than the courthouse,
such as the Home Depot in Toms River and the police station in
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Elizabeth. In addition, they had been discussing everything
regarding their daughter "over e-mails."
Defendant testified that plaintiff has abused her "mentally,
physically, [and] emotionally," and has "also abused [her]
children[.]" However, she "put that away to the side," for the
sake of their daughter. Defendant got married, had a baby, has
undergone domestic violence counseling for three years, attends
her appointments "to meet the criteria" for continued services,
and has "moved on" with her life. Defendant explained, "[t]his
is not about him fearing me, this is really about custody[.]"
Defendant accused plaintiff of using the restraining order "to dig
[her] in[to] a hole so that way he can have a higher hand with a
restraining order," but "restraining orders should be for people
whose rights have been violated."
At the conclusion of the hearing, the judge applied the
Carfagno factors and vacated the FRO. In analyzing the factors,
the judge found no evidence of contempt convictions resulting from
any FRO violations, no evidence of drug or alcohol abuse by
defendant, and no evidence of violent acts against other persons
or orders of protection entered by other jurisdictions. The judge
acknowledged defendant's mental health issues, as well as the fact
that she has engaged in counseling. In evaluating the current
nature of the relationship between the parties, the judge observed:
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The parties seem as if . . . they have
been cooperating . . . since this [c]ourt's
involvement in 2014, where they appeared
before me on a number of occasions, and
they’ve . . . appeared before . . . a lot of
other judges earlier . . . on similar type
matters, that the pickup and drop off,
essentially, has been working. . . .
. . . They are communicating with regard to
the child by e-mail as to the child’s . . .
activities . . . . [I]t seems as if [there is]
ultimately going to be a custody contest
. . . .
To me, it seems as if the parties, since
this [c]ourt entered the order dismissing the
. . . restraining order, back on December
19[], 2014, the parties have been existing
. . . . I have not been presented with any
police reports indicating that one side or the
other was involved in an assault. . . . [T]here
w[ere] two occasions that [plaintiff]
testified . . . that [defendant] came to [his]
house to drop off the child. That probably
was . . . not a good idea as an alternative
as to where the pickup and drop[-]off should
be. If [it is] agreed upon at a police
station, or . . . the [H]ome [D]epot where the
. . . child[,] who is now five[,] can get out
of a car and get into another car, I don’t
think . . . [that is] an issue, but going to
someone's house when there was a restraining
order for a number of years can be alarming.
I would admit that. So, . . . that should not
be done, because that will just result . . .
in . . . the police being called again.
The judge focused on "the good faith of the victim" in
opposing the dissolution and "in requesting, again, for the [c]ourt
to reinstate the . . . [FRO.]" The judge also carefully
scrutinized the testimony regarding "the victim's fear of the
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defendant[.]" The judge noted that "the primary factor that
[plaintiff] is relying upon is that he is in fear of [defendant],
and that he believes that if the restraining order is not entered
that he would be subject to, essentially, violence as he had
earlier when the restraining order was entered[.]" However, the
judge concluded:
I . . . really believe that the real issue
here is more FD issues. [They are] custody
issues, and if the parties are going to go
through a custody trial . . . then a court
. . . will make a decision. Clearly there
will still be parenting time. [That is] never
going to change. [They have] been having
parenting time since the child was born, and
that part will always be in effect. But I do
not believe that . . . [plaintiff] has a good
faith based fear of this defendant. I think
that he is trying to use this as an upper hand
in a custody battle, and I will not reinstate
the restraining order.
On appeal, plaintiff argues the judge "erred by converting
the appellate remand into a motion for reconsideration by
[p]laintiff[,]" which "put an enormous and unfair burden on
[p]laintiff[.]" Plaintiff also argues the judge "failed to make
any factual findings to support [his] conclusions[,]" made
"unsupported conclusions with no factual basis[,]" and "failed to
make any factual findings or assessment of credibility of the
parties['] testimony, to determine what credible testimony, if
any, should add weight to the factors outlined in Carfagno."
8 A-3421-15T3
We do not disturb a trial court's factual findings unless
unsupported by "adequate, substantial[,] and credible evidence,"
Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474,
484 (1974), and we pay particular deference to the Family Part's
expertise. Cesare v. Cesare, 154 N.J. 394, 412-13 (1998).
Deference is also appropriate "when the evidence is largely
testimonial and involves questions of credibility." Id. at 411
(quoting In re Return of Weapons to J.W.D., 149 N.J. 108, 117
(1997)). On the other hand, the appropriate standard of review
for conclusions of law is de novo. S.D. v. M.J.R., 415 N.J. Super.
417, 430 (App. Div. 2010) (citing Manalapan Realty, L.P. v. Twp.
Comm. of Manalapan, 140 N.J. 366, 378 (1995)).
"[T]he Legislature did not intend that every [FRO] issued
pursuant to the [PDVA] be forever etched in judicial stone." A.B.
v. L.M., 289 N.J. Super. 125, 128 (App. Div. 1996). Pursuant to
the PDVA, a court may vacate an FRO upon good cause shown. N.J.S.A.
2C:25-29(d). "The linchpin in any motion addressed to dismissal
of a [FRO] should be whether there have been substantial changed
circumstances since its entry that constitute good cause for
consideration of dismissal." Kanaszka v. Kunen, 313 N.J. Super.
600, 609 (App. Div. 1998). "With protection of the victim the
primary objective, the court must carefully scrutinize the record
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and carefully consider the totality of the circumstances before
removing the protective shield." Id. at 605.
In Kanaszka, supra, 313 N.J. Super. at 607, we adopted
Carfagno's non-exclusive list of eleven factors a trial court
should consider when determining whether good cause to dissolve
an FRO has been shown. Those factors, which are to be weighed
"qualitatively, and not quantitatively," Carfagno, supra, 288 N.J.
Super. at 442, include:
(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.
[Id. at 435.]
Additionally, a court must consider whether the continuation of
the FRO "prejudices defendant" because that "is what good cause
is all about." Sweeney v. Honachefsky, 313 N.J. Super. 443, 448
(App. Div. 1998).
10 A-3421-15T3
When considering whether the victim fears the defendant, the
court must look at objective fear, not subjective fear. Carfagno,
supra, 288 N.J. Super. at 437-38. "Objective fear is that fear
which a reasonable victim similarly situated would have under the
circumstances." Id. at 437. The standard is objective fear
because "[t]he duration of an injunctive order should be no longer
than is reasonably required to protect the interest of the injured
party." Id. at 438 (emphasis omitted) (quoting Trans Am. Trucking
Serv., Inc. v. Ruane, 273 N.J. Super. 130, 133 (App. Div. 1994)).
If the court applied a subjective standard, the scope of the
injunction might be broader than reasonably necessary to protect
the victim and would unnecessarily infringe on the defendant's
rights. Ibid.
Additionally, the court must "fully explore[]" the "previous
history of domestic violence between the parties . . . to
understand the totality of the circumstances . . . and to fully
evaluate the reasonableness of the victim's continued fear of the
perpetrator." Kanaszka, supra, 313 N.J. Super. at 607. This
exploration can include "incidents that were not testified to at
the final hearing." Ibid.
Here, reviewing the judge's findings with the deference
accorded to findings made by a Family Part judge, we find no reason
to interfere with the decision. The judge was satisfied that
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defendant demonstrated substantial changed circumstances since the
entry of the FRO, constituting good cause for its dismissal.
Indeed, substantial change was evident from defendant's testimony
that she had undergone counseling and "moved on" with her life.
In addition, the FRO prejudiced defendant in the parties' ongoing
custody litigation. See Sweeney, supra, 313 N.J. Super. at 446-
47. The judge also determined that plaintiff's fear of defendant
was not objectively reasonable. While not explicit, we can
certainly glean the judge’s credibility assessment of plaintiff’s
testimony regarding his fear from the following statement: "I do
not believe that . . . [plaintiff] has a good faith based fear of
this defendant. I think that he is trying to use this as an upper
hand in a custody battle[.]" Contrary to plaintiff's argument,
the judge's findings are supported by adequate, substantial, and
credible evidence in the record.
Plaintiff also argues for the first time on appeal that the
judge failed to provide proper notice of the hearing by including
the "wrong case caption and docket number" in the notice to appear.
However, we "decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a
presentation is available unless the questions so raised on appeal
go to the jurisdiction of the trial court or concern matters of
great public interest." Zaman v. Felton, 219 N.J. 199, 226-27
12 A-3421-15T3
(2014) (quoting State v. Robinson, 200 N.J. 1, 20 (2009)). Neither
exception is implicated here.
Affirmed.
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