Docket No. A-3446-21
Decided April 11, 2024
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In a recent unpublished decision, the Appellate Division of New Jersey affirmed the denial of a motion to dissolve a Final Restraining Order (FRO) after defendant failed to prove a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.
In L.V. v. R.V., 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 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.
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.
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 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 defendant’s “granddaughter,” shall be in accord with any orders issued by the Family Part.
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.
Defendant appealed and the Appellate Division affirmed, finding the trial Court had appropriately assessed all of the factors in Carfagno and the facts were supported by the record.
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, appeals, and more.
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