D.P. VS. E.P. (FV-16-1797-96, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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-5062-14T3
D.P.,
Plaintiff-Respondent,
v.
E.P.,
Defendant-Appellant.
_______________________________
Submitted May 8, 2017 – Decided May 24, 2017
Before Judges Nugent and Currier.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Passaic
County, Docket No. FV-16-1797-96.
E.P., appellant pro se.
Respondent has not filed a brief.
PER CURIAM
Defendant E.P. appeals from a March 28, 2015 amended final
restraining order (FRO) entered in favor of plaintiff D.P. pursuant
to the Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A.
2C:25-17 to -35. The court entered the order after it denied
defendant's motion to dismiss a 1996 FRO. We affirm.
We derive the following facts and procedural history from the
record. In March 1996, a Family Part judge entered mutual FROs
against the parties based on their history of domestic violence.
On March 11, 1998, the parties were divorced. Nearly seventeen
years later, on February 20, 2015, defendant filed a motion to
dismiss the FRO against her. In support of her motion, defendant
certified she had abided by the FRO for nineteen years, and the
FRO prevents her from seeking employment in the bail bonds business
because the order prohibits her from possessing a firearm. On
March 30, 2015, plaintiff opposed defendant's motion and certified
plaintiff continues to put him in fear of his life. On May 21,
2015, defendant filed a reply.
At the May 28, 2015 hearing on her motion to dismiss the FRO,
defendant argued the FRO prevents her from establishing a
relationship with her grandchild and from working in the bail
bonds business because she is unable to register for a firearms
license. In response, plaintiff testified he is not involved in
defendant's relationship with their grandchild, is still fearful
of her, and believes she would use a firearm to cause him and his
wife harm.
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Judge Esther Suarez denied defendant's request to dismiss the
FRO at the conclusion of the hearing. She determined, based on
the "very very strong and very very angry" tenor of the papers
submitted to the court, that defendant remains hostile towards
plaintiff. She noted defendant failed to prove plaintiff
interferes with her relationship with her grandchild. The judge
deemed defendant's inability to obtain a firearms license to enter
the bail bonds business insufficient to vacate the FRO. The judge
also found plaintiff's fears of defendant credible and concluded
she would not vacate the FRO because "each party still harbors a
lot of anger and resentment towards the other." Judge Suarez
entered an amended FRO against defendant.
Defendant moved for reconsideration and for other relief not
relevant to the issues on appeal. The court denied the motion.
After further motion practice in the Appellate Division, defendant
perfected her appeal.
On appeal, defendant raises the following arguments:
POINT I
[THE] LOWER COURT'S DECISION DENYING THE
DISMISSAL OF THE [FRO] AGAINST THE APPELLANT
MUST BE REVERSED SINCE THE RESPONDENT FAILED
TO PRESENT ANY OBJECTIVE EVIDENCE OF A
REASONABLE FEAR OF THE APPELLANT.
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POINT II
[THE] LOWER COURT'S DECISION MUST BE REVERSED
BECAUSE THE TRIAL COURT JUDGE FAILED TO
CONSIDER APPELLANT'S OBJECTIVE EVIDENCE THAT
CLEARLY DEMONSTRATES RESPONDENT'S MALICE AND
BAD FAITH IN HIS REFUSAL TO DISMISS THE FRO
AGAINST THE APPELLANT.
We review the order at issue under well-established
principles. A trial judge's fact-finding is "binding on appeal
when supported by adequate, substantial, credible evidence."
Cesare v. Cesare, 154 N.J. 394, 411-12 (1998) (citation omitted).
We accord deference to a family court's fact-finding because family
courts possess "special jurisdiction and expertise in family
matters[.]" Id. at 413. "Deference is especially appropriate
'when the evidence is largely testimonial and involves questions
of credibility'" because a trial judge has the opportunity to see
and hear the witnesses and develop a "feel of the case[.]" Id.
at 412; N.J. Div. of Youth & Family Servs. v. G.M., 198 N.J. 382,
396 (2009). In contrast, a trial judge's legal decisions are
subject to plenary review. Crespo v. Crespo, 395 N.J. Super. 190,
194 (App. Div. 2007) (citation omitted).
When determining whether to dismiss a FRO, "the motion judge
must consider whether the moving party has established 'good cause'
to dissolve the restraints." Kanaszka v. Kunen, 313 N.J. Super.
600, 607 (App. Div. 1998). The judge should consider:
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(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 v. Carfagno, 288 N.J. Super. 424,
435 (Ch. Div. 1995).]
"[T]he previous history of domestic violence between the
parties must be fully explored and considered to understand the
totality of the circumstances of the relationship and to fully
evaluate the reasonableness of the victim's continued fear of the
perpetrator." Kanaszka, supra, 313 N.J. Super. at 607. Upon a
later application for the dismissal of an FRO, "inquiry into the
history of the relationship and prior acts of domestic violence
become important" considerations when evaluating "the necessity
for continued protection." Id. at 608.
Here, Judge Suarez properly considered the factors enumerated
in Carfagno and determined a great deal of animosity still exists
between defendant and plaintiff such that plaintiff remains
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fearful of both defendant and the actions she might take if the
court lifted the FRO. The judge found unavailing the reasons
enumerated by defendant in support of her motion to dismiss the
FRO. Judge Suarez's findings are amply supported by the record
and her conclusions are sound. Given our deferential standard of
review, there is no basis for questioning the judge's decision.
Affirmed.
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