O.S.N. VS. C.M.N. (FV-02-2163-17, BERGEN COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 22, 2020
• Docket: A-4605-18T1
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4605-18T1

O.S.N.,

Plaintiff-Respondent,

v.

C.M.N.,

Defendant-Appellant. __________________________

Submitted September 15, 2020 – Decided September 22, 2020

Before Judges Mawla and Natali.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-2163-17.

C.M.N., appellant pro se.

Inkyung Lee, attorney for respondent.

PER CURIAM

Defendant appeals from a May 10, 2019 Family Part order that denied his

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

affirm.

I.

We briefly summarize the relevant facts and procedural history. On June

22, 2017, O.S.N. 1 filed a domestic violence complaint pursuant to the PDVA

and sought a temporary restraining order (TRO) based on defendant C.M.N.'s

prior, unreported acts of domestic violence and an incident the previous night in

which defendant, "struck her on the head [three times] with his hand." The court

granted the TRO and scheduled a hearing on plaintiff's application for a FRO.

The court heard the matter on June 29, 2017. Defendant had notice of the

proceeding but did not appear.

Plaintiff testified that she and defendant were previously married and

divorced in September 2016. The parties reconciled sometime thereafter and

began cohabitating occasionally in the former marital residence in Edgewater.

On June 21, 2017, defendant came to the residence and accused plaintiff

of being unfaithful and "hit [the] left side of [her] face." She testified that she

was "really scared," "scream[ed] and yell[ed] [for] someone to help [her]," and

attempted to flee the house. Plaintiff also stated that she had filed a previous

1 We use the parties' initials to protect O.S.N.'s privacy. R. 1:38-3(d)(10). A-4605-18T1 2 domestic violence complaint against defendant as a result of prior assaults and

that she remains "afraid of him a lot."

Family Part Judge Christine A. Farrington found that plaintiff testified

credibly, that defendant had committed a simple assault upon her, and that

plaintiff required a FRO because she was in fear of defendant. The judge also

noted that "from a distance of approximately [fifteen] feet . . . I can observe deep

black and blue marks to the entire left side of plaintiff's face." Judge Farrington

entered the FRO, which required, among other things, that defendant attend a

batterers' intervention program.

Defendant was also charged in the Edgewater municipal court with simple

assault, N.J.S.A. 2C:12-1(a)(1), a disorderly persons offense, and terroristic

threats, N.J.S.A. 2C:12-3(a), related to the June 21, 2017 incident. According

to the Notice of Disposition, the municipal court found defendant not guilty of

those charges on October 23, 2017.2

2 Plaintiff attributes the favorable municipal disposition to her statement to the prosecutor that "she did not want to send the [d]efendant to prison because of the [parties'] . . . children." The record, however, does not contain a transcript of the municipal court proceeding and we are therefore unable to determine the proofs presented by the State, or the basis for the court's decision.

A-4605-18T1 3 Nearly a year and a half later, on March 7, 2019, defendant filed a motion

in the Family Part to vacate the FRO. Family Part Judge Carol Novey Catuogno

heard oral argument on the application and placed her decision on the record. 3

The judge reviewed the relevant factors for dissolving a FRO, which are

identified in Carfagno v. Carfagno, 288 N.J. Super. 424, 435 (Ch. Div. 1995),

and found that defendant had not shown good cause to dissolve the order.

The judge also found that defendant had not shown he was entitled to relief

from the FRO under Rules 4:49-1, 4:49-2, or 4:50-1. The judge entered an order

denying the motion and this appeal followed.

II.

As best we can discern, on appeal defendant argues that the: (1) FRO

should be dissolved because it was entered by default without proper service;

(2) TRO and FRO were erroneously granted as plaintiff testified falsely and

inconsistently at the FRO hearing; and (3) court failed to consider exculpatory

3 Judge Farrington, who presided over the FRO hearing, was assigned to the Civil Division at the time defendant filed his request to dissolve the FRO. Accordingly, Judge Catuogno handled the application and appropriately reviewed the record including the transcript of the prior proceeding. See Kanaszka v. Kunen, 313 N.J. Super 600, 606-07 (App. Div. 1998) (holding that a judge who did not issue the final restraining order may nevertheless rule upon a motion to dissolve it so long as the judge reviewed the "complete record," including at a minimum, "all pleadings and orders, the court file, and a complete transcript of the final restraining order hearing"). A-4605-18T1 4 evidence, disregarded that he was acquitted in the municipal court of simple

assault, and "refused [his] right to speak." Having thoroughly considered these

arguments in light of the record and the applicable law, we conclude defendant's

arguments are without merit.

We note initially that the trial court's findings of fact are binding on appeal

"if supported by adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65

N.J. 474, 484 (1974)). An appellate court may not set aside a trial court's factual

findings unless convinced the findings "are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice." Ibid. (quoting Rova Farms, 65 N.J. at 484).

Moreover, an appellate court should defer to fact-finding by the Family

Part because of that court's "special expertise in the field of domestic relations."

Ibid. (citing Brennan v. Orban, 145 N.J. 282, 300-01 (1996)). However, we owe

no deference to the trial court's ruling on an issue of law, which we review de

novo. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995).

A-4605-18T1 5 III.

We reject plaintiff's initial argument that the FRO should be vacated

because he was improperly served as unsupported by the record. We also reject

his challenge to the court's factual findings as both procedurally defective under

Rules 4:49-1, 4:49-2 and 4:50-1, and substantively without merit.

As to service of the TRO, defendant does not dispute that while he was

incarcerated on the municipal charges, he was personally served with the TRO

on June 26, 2017, which clearly indicated that the return date for the FRO

hearing was scheduled for June 29, 2017. Defendant made no attempt to contact

the court to seek an adjournment or reschedule the FRO hearing and the court

appropriately proceeded in his absence. Defendant claims on appeal that his

poor eyesight prevented him from noting the date for the hearing. We are

satisfied from our review of the record that the TRO was properly served, and

defendant had sufficient time and the ability to read the notice so that he could

appear at the FRO hearing or submit a timely adjournment request to the court.

Instead, as noted, defendant waited over a year to seek relief from the

FRO. As the court correctly recognized, although a motion for new trial "may

be granted to all or any of the parties and as to all or part of the issues on motion

made to the trial judge," Rule 4:49-1(a), any such application must be served

A-4605-18T1 6 "not later than 20 days after the court's conclusions are announced in nonjury

actions." R. 4:49-1(b). Similarly, a motion to alter or amend an order "shall be

served not later than 20 days after service of the judgment or order upon all

parties by the part obtaining it." R. 4:49-2. Here, defendant filed his application

on March 7, 2019, one year and nine months after the issuance of the FRO. We

agree with the judge that defendant was procedurally barred from relief u nder

Rule 4:49-1 and Rule 4:49-2 for failure to file his application within the

appropriate time frame.

Defendant was also procedurally barred from seeking relief under Rule

4:50-1. That Rule permits a court to grant a party relief from a final judgment

or order for the following reasons:

(a) mistake, inadvertence, surprise, or excusable neglect; (b) newly discovered evidence which would probably alter the judgment or order and which by due diligence could not have been discovered in time to move for a new trial under [Rule] 4:49; (c) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (d) the judgment or order is void; (e) the judgment or order has been satisfied, released or discharged, or a prior judgment or order upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment or order should have prospective application; or (f) any other reason justifying relief from the operation of the judgment or order.

A-4605-18T1 7 [R. 4:50-1.]

A motion for relief under Rule 4:50-1, however, must be made within a

reasonable time and if based on the grounds detailed under subsections (a), (b),

and (c), must also be made within a year after the judgment or order. R. 4:50-

2.

A trial court's decision under Rule 4:50-1 should be given "substantial

deference," and will not be reversed unless shown to be "a clear abuse of

discretion." U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012)

(citing DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009)). Further,

relief under subsection (f) is available "only when 'truly exceptional

circumstances are present.'" Guillaume, 209 N.J. at 484 (quoting Little, 135 N.J.

at 286). "The rule is limited to situations in which, were it not applied, a grave

injustice would occur.'" Ibid. (quoting Little, 135 N.J. at 289).

Judge Catuogno did not err in finding defendant was not entitled to relief

under Rule 4:50-1(a), (b), and (c). Again, the FRO was entered on June 29,

2017, and defendant did not seek relief within a year. For the same reason, the

judge also did not err in concluding that defendant's one year and nine-month

delay in filing his motion after he was made aware of the FRO was not

reasonable under Rule 4:50-1(d), (e), and (f). Lee v. W.S. Steel Warehousing,

A-4605-18T1 8 205 N.J. Super. 153, 156 (App. Div. 1985) (noting that a determination of

reasonable time is dependent on "the totality of the circumstances"); Palko v.

Palko, 73 N.J. 395, 398 (1977); ("A significant element in the timeliness of

plaintiff's motion, noting the strictures of the rule, would consist of the date

when plaintiff first discovered the facts underlying her application . . . ."); see

also Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 4:50-2 (2020).

Even if we were to assume that defendant submitted his application for

relief from the FRO within a reasonable time, defendant failed to establish that

relief was warranted due to "truly exceptional circumstances" or that a "grave

injustice would occur" if relief was denied. Little, 135 N.J. at 289. Defendant

was properly served and had notice of the FRO. As Judge Farrington found,

plaintiff testified credibly that defendant assaulted her, and she remained

fearful of him. Finally, Judge Catuogno noted "there's nothing that voids [the

FRO] by operation of law, [subsection (e)] is not applicable in a final

restraining order, [and there is] no other reason justifying relief from the

operation of the judgment or order." The record supports those findings.

IV.

The court also correctly rejected defendant's challenges to the factual

findings supporting the FRO. To secure a FRO under the PDVA, the plaintiff

A-4605-18T1 9 must establish that the defendant committed a predicate act of domestic

violence, as defined in N.J.S.A. 2C:25-19(a), and that a restraining order is

required to protect the victim from further acts of domestic violence. Silver v.

Silver, 387 N.J. Super. 112, 125-27 (App. Div. 2006). The predicate acts in

N.J.S.A. 2C:25-19(a) include simple assault under N.J.S.A. 2C:12-1 and

harassment under N.J.S.A. 2C:33-4. The PDVA allows the trial court to dissolve

or modify a FRO upon good cause shown. N.J.S.A. 2C:25-29(d); Carfagno, 288

N.J. Super. at 434.

Defendant initially claims that the event that led to the issuance of the

FRO was based on "fraud or misrepresentation" perpetuated by the plaintiff and

that Judge Catuogno wrongfully disregarded a photograph that was "decisive

proof" of his claim. We disagree. The record supports Judge Catuogno's finding

that defendant failed to show good cause to dissolve the FRO under the standard

set forth in Carfagno.

In Carfagno, the Chancery Division delineated eleven factors for courts to

consider in evaluating whether "good cause" to vacate the restraining order has

been demonstrated:

(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 the defendant has been

A-4605-18T1 10 convicted of contempt for violating the order; (5) whether the defendant has 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.

[Id. at 435.]

Here, the court conscientiously considered these factors and found that:

(1) plaintiff had not consented to lift the restraining order; (2) plaintiff feared

defendant; (3) the parties had no ongoing relationship; (4) defendant had no

prior violations of the FRO and no contempt citations; (5) defendant did not

present any evidence that he had abstained from either drugs or alcohol; (6) there

was no evidence that defendant had been involved in violent acts with other

persons; (7) defendant did not attend his court mandated batterers' intervention

program; (8) defendant was at an advanced age of eighty-two years; (9) plaintiff

acted in good faith; (10) there were no other restraining orders in effect; an d

(11) no other factor had been deemed relevant by the court.

In denying defendant's application, the court relied on the factual findings

of assault as made by Judge Farrington, including the observed physical injuries,

A-4605-18T1 11 plaintiff's lack of consent to lifting the restraints, defendant's failure to engage

in the court ordered batterers' program and plaintiff's continued fear of

defendant. As these findings are amply supported by the record, we are satisfied

that the court did not abuse its discretion in denying defendant's application.

Defendant also seemingly argues that good cause exists because the

municipal court judge found that the State had not proven beyond a reasonable

doubt that defendant committed the criminal charge of assault. However, as

Judge Catuogno recognized, the standard of proof for a criminal charge is proof

beyond a reasonable doubt, whereas under the PDVA, the standard of proof for

obtaining a FRO is preponderance of the evidence. N.J.S.A. 2C:25-29(a). The

court correctly determined it was not bound by the findings of the municipal

court judge in the criminal matter.

Indeed, in State v. Brown, 394 N.J. Super. 492, 504 (App. Div. 2007), we

observed that the purposes of an action under the PDVA and a criminal action

are distinctly different. We noted that an action in the Family Part under the

PDVA is intended "to protect an individual victim," whereas in a criminal case,

"the State prosecutes a defendant on behalf of the public interest." Ibid.

A-4605-18T1 12 To the extent we have not addressed any of defendant's remaining

arguments it is because we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-4605-18T1 13