DISSOLVING A FINAL RESTRAINING ORDER IN NEW JERSEY
Docket No. A-2377-21
Decided March 20, 2023
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division of New Jersey affirmed the denial of a motion to dissolve a Final Restraining Order (FRO) after defendant failed to prove a substantial change in circumstances, even though the Plaintiff/victim did not oppose the application.
In J.H. v. G.H., , the parties were married in September 1995 and plaintiff filed for divorce in February 2008, when the parties’ only child was eleven years old. Id. at 1-2. The following month, plaintiff sought restraints against defendant. On March 13, plaintiff applied for and received a [temporary restraining order] under the Act. In her complaint, she alleged that defendant had engaged in threatening conduct beginning in January and culminating that day when she discovered that defendant had possession of “numerous guns that were supposed to be locked up.” Plaintiff alleged that these events amounted to harassment, N.J.S.A. 2C:33-4. Regarding prior incidents of domestic violence, plaintiff referenced those “reported” to the judge on March 7, the date of the hearing on her order to show cause in the matrimonial case[, i.e., defendant’s use of drugs, fondness for firearms, psychological problems, and suicide threats].
The judge found defendant committed at least seven acts between January 24, 2008 and March 12, 2008, establishing a “‘course of conduct’ . . . that demonstrated harassment, the necessary predicate act of domestic violence.” The acts included defendant’s: repeated suicide threats after the parties argued and he produced a gun; recorded statement to plaintiff that he had three firearms that were not locked in a safe; acknowledgment that he smoked marijuana; threats to publish a letter plaintiff had written to her counselor; and threats to “print nude photos he had taken of plaintiff, and ‘make use of them.'”
Based on the totality of the circumstances, including defendant’s misrepresentation about “his immediate access to weapons,” the judge further determined an FRO was necessary to protect plaintiff from future harm.
In 2016, defendant filed his initial application to dissolve the FRO. the judge issued an order and accompanying statement of reasons denying defendant’s motion.
Six years later, in January 2022, defendant filed the present motion to dissolve the FRO. In his accompanying certification, defendant claimed he was a sixty-five-year-old chiropractor, who sought to dissolve the FRO to “move beyond this period in [his] life.” Without elaborating, defendant claimed the FRO “has tarnished [his] background and it [wa]s very shameful to explain that [he is] registered as a domestic violence perpetrator.” Asserting he “own[ed] a busy office and work[ed] approximately [ten to eleven] hours per day,” defendant claimed the FRO “has the ability to tarnish [his] name professionally.”
The Judge found, again, defendant had not shown a significant change in circumstances to dissipate the FRO, despite Plaintiff writing a letter indicating she was not opposing the application because she wanted to more ties to the defendant.
The defendant appealed, and the Appellate Division found no abuse of discretion, affirming the denial of the application with no evidence presented of a change in circumstance.
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 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 (trial). Kanaszka, 313 N.J. Super. at 608. Conclusory allegations will not suffice. Ibid.
If you have an FRO against someone else or against yourself, contact the experienced attorneys at Hark & Hark today. At Hark & Hark, we help clients with prenups, divorce, custody, domestic violence, child support, alimony, adoptions and more.
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