C.A. v. J.E.A. (FV-13-0182-20, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 10, 2022
• Docket: A-4512-19
• Status: Unpublished

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4512-19

C.A.,

Plaintiff-Respondent, v.

J.E.A.,

Defendant-Appellant. ________________________

Submitted December 2, 2021 – Decided March 10, 2022

Before Judges Mawla and Mitterhoff.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Monmouth County, Docket No. FV-13-0182-20.

Nicholas A. Moschella, Jr., attorney for appellant.

Legal Services of New Jersey, attorneys for respondent (Shoshana E. Gross, of counsel and on the brief).

PER CURIAM

Defendant J.E.A. appeals from a July 7, 2020 order denying his motion to

dissolve a final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We affirm, substantially for

the reasons set forth in Judge Angela White Dalton's thoughtful oral opinion.

We add the following comments.

On August 1, 2019, plaintiff obtained a temporary restraining order (TRO)

in Holmdel Township Municipal Court. Plaintiff alleged "defendant followed

her throughout the house[,] screaming and cursing at her for the past three

weeks[,]" "defendant drinks to excess and becomes violent[,]" and "defendant

will throw household items around causing damage to the residence." That same

day, defendant was arrested and served with the TRO.

After defendant failed to appear for the August 6, 2019 trial, the judge

entered an FRO against defendant by way of default based on plaintiff's

testimony. She found defendant was properly served on August 1, 2019 and

released from jail on August 5, 2019. The judge also ordered defendant to

submit the results of his most recent alcohol evaluation, maintain support of the

household, and complete a domestic violence batterer's abuse counseling

program. Defendant did not appeal the entry of the FRO.

A-4512-19 2 On May 22, 2020, defendant moved to dissolve the FRO. 1 At the July 7,

2020 motion hearing, defendant admitted that he had attended only twenty-seven

of the approximately forty-one mandatory counseling visits with a batterer's

intervention program. The judge referred to a letter from the program indicating

that defendant was "calculating and superficially compliant." She also

considered credit card statements provided by plaintiff showing that, between

November 8, 2019 and June 12, 2020, defendant made purchases of liquor

totaling $1,973.55. The purchases began two weeks after he completed his

alcohol use treatment program. Defendant admitted making the purchases but

claimed they were for his friends in his ping-pong and golf groups. Plaintiff's

certification opposed the dissolution of the FRO because she remained fearful

of defendant.

After addressing each of the Carfagno 2 factors, Judge Dalton rendered her

oral decision denying the application without a plenary hearing. She concluded

that defendant's certification failed to raise any material issue of disputed fact

requiring a hearing.

1 On December 11, 2019, Judge Dalton denied a prior motion to vacate the FRO alleging defendant never received notice. 2 Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995).

A-4512-19 3 On appeal, defendant presents the following arguments for our

consideration:

POINT I

THE DEFENDANT WAS DENIED A FULL AND FAIR HEARING ON THE MERITS AND SHOULD BE GRANTED A NEW HEARING BASED UPON THE RELEVANT FACTORS PURSUANT TO CARFAGNO . . . .

A. The Carfagno Factors were improperly applied to Defendant.

Our review of a trial judge's fact-finding function is limited. Cesare v.

Cesare, 154 N.J. 394, 411 (1998). A judge's findings of fact are "binding on

appeal when supported by adequate, substantial, credible evidence." Id. at 411-

12. We will not disturb a judge's factual findings unless convinced "they are so

manifestly unsupported by or inconsistent with the competent, relevant[,] and

reasonably credible evidence as to offend the interests of justice[.]" Rova Farms

Resort, Inc. v. Invs. Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v.

Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). We, however,

review de novo "the trial judge's legal conclusions, and the application of t hose

conclusions to the facts[.]" Elrom v. Elrom, 439 N.J. Super. 424, 433 (App.

Div. 2015) (quoting Reese v. Weis, 430 N.J. Super. 552, 568 (App. Div. 2013)).

A-4512-19 4 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

A-4512-19 5 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.

Kanaszka, 313 N.J. Super. at 608. Conclusory allegations will not suffice. Ibid.

With these guiding principles in mind, we reject defendant's assertion that

he was entitled to a plenary hearing. The judge carefully considered the

Carfagno factors and made detailed findings as to why defendant had not made

a prima facie showing of a substantial change in circumstances. Most notably,

the undisputed facts are that the FRO had been in place for less than a year and

defendant had not completed a significant number of his required batterer's

intervention sessions. Nothing in defendant's certification dispelled the

program's letter indicating defendant was, as the judge described it, "phoning it

in" rather than accepting responsibility for his conduct. It is undisputed that

shortly after completing alcohol use treatment, defendant began making regular

purchases of alcohol, undermining his bald assertion that he had stopped

drinking. It is undisputed that plaintiff opposes the application. Defendant's

wish to cross-examine plaintiff on whether she remains subjectively afraid does

A-4512-19 6 not warrant a hearing. The judge found that under the circumstances any

objectively reasonable victim would remain afraid given the short time that had

elapsed and defendant's lack of progress toward resolving the issues that led to

the initial entry of the FRO. We conclude that Judge Dalton's factual findings

are amply supported by the record and her legal conclusions are sound. We

discern no error requiring reversal.

Affirmed.

A-4512-19 7