Docket No. A-1294-23
Decided October 22, 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In a recent unpublished decision, the Appellate Division of New Jersey affirmed the denial of a motion to dissolve a Final Restraining Order (FRO) after defendant failed to produce a transcript of the FRO trial.
In J.M.S-M. v. W.V.M., after a domestic violence trial, the court entered an FRO against defendant on March 29, 2018. On July 20, 2018, after being charged with terroristic threats, aggravated assault, false imprisonment, harassment, and weapons charges, defendant pled guilty to second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39- 4(a)(1). The sentencing court imposed a five-year term of probation with conditions, which included that defendant was prohibited from having any contact with plaintiff. Nearly five years later, on April 14, 2023 a judge granted defendant’s motion to terminate probation, in an order.
On August 9, 2023, defendant moved to vacate the FRO. Plaintiff opposed the motion and cross-moved for an order continuing the restraints. The trial court judge assigned to hear the motion was not the same judge who entered the FRO.
During the August hearing, plaintiff’s counsel argued the motion was not “ripe for hearing” because defendant failed to submit a transcript of the FRO trial as required under prevailing law. The judge initially agreed, stating the “[c]ourt rules require me to see the transcript. I didn’t issue the restraining order in this case.” In response, defense counsel argued the court could listen to the audio recording of the FRO trial instead of requiring defendant to provide the transcript.
The Court instead proceeded to rule on the motion without the transcript or reviewing the audio, without objection from defendant to obtain a transcript first. The Court denied the application, providing it needed the transcript. Defendant appealed and the Appellate Division affirmed, finding that a transcript was necessary in order for the new Judge to make a ruling and reviewing the audio, even if it was done, was also insufficient.
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.
Defendant also must provide a transcript before the Court can make a ruling on the motion.
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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