R.L. VS. L.A.W. (FV-14-1079-12, MORRIS COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: January 14, 2021
• Docket: A-5714-17T2
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-5714-17T2

R.L.,

Plaintiff-Respondent,

v.

L.A.W.,1

Defendant-Appellant. _______________________

Submitted December 8, 2020 – Decided January 14, 2021

Before Judges Yannotti and Haas.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-1079-12.

L.A.W., appellant pro se.

R.L., respondent pro se.

PER CURIAM

1 We use initials to identify the parties and others to protect the identity of plaintiff, who was found to be a victim of domestic violence. See R. 1:38- 3(c)(12). Defendant appeals from an amended final restraining order (FRO),

entered by the Family Part on June 28, 2018, pursuant to the Prevention of

Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse the

provision of the June 28, 2018 order, which prohibits defendant from having any

communications with two of her children, and remand for further proceedings

on plaintiff's motion to modify the existing FRO.

I.

This appeal arises from the following facts. The parties had a lengthy

relationship and they had three children: Jo.L. (born May 1994), Je.L. (born

February 1999), and Ji.L. (born April 2000). On May 19, 2012, the parties had

an argument in their home, during which defendant slapped plaintiff and

destroyed some of his property. A judge granted plaintiff's application for a

temporary restraining order (TRO) against defendant. Among other things, the

TRO gave plaintiff exclusive possession of the parties' home and temporary

custody of the children.

On June 20, 2012, the trial court granted plaintiff's application for a FRO.

Among other provisions, the FRO granted plaintiff exclusive possession of the

home, prohibited defendant from plaintiff's place of employment, barred

defendant from contacting plaintiff, and prohibited her from possessing any

A-5714-17T2 2 weapons. The FRO also gave plaintiff temporary custody of the children and

granted her parenting time with the children as arranged through the parties'

attorneys.

On September 26, 2012, the trial court entered orders in a proceeding

under the FM docket, which awarded the parties joint legal custody of the

children and designated plaintiff the parent of primary residence.2 The court

granted defendant parenting time, which was to be supervised by Peaceful

Measures, pending a custody and parenting time evaluation by an independent

expert.

On September 28, 2012, the court amended the FRO to permit defendant

to contact plaintiff via non-harassing and non-threatening emails concerning the

children. The order also allowed the parties to communicate telephonically "in

the case of a true medical emergency." In addition, the order allowed defendant

to have Skype communications with the children and deferred the decisions on

custody and parenting time to the court in the FM docket.

On December 18, 2014, the court filed an amended FRO. Among other

things, the order provided that the parties may participate in parenting sessions

2 The FM docket includes divorce and marital nullity proceedings. See N.J. Dept. of Children and Families v. I.S., 214 N.J. 8, 22 n.3 (2013). A-5714-17T2 3 with Dr. Sharon Ryan Montgomery in her office. The order also provided that

defendant could utilize Skype to communicate with her children.

In February 2016, a Morris County grand jury returned an indictment

charging defendant with various offenses, which arose out of events that

occurred on May 17, 2015. Defendant was later tried before a jury and found

guilty of aggravated assault upon plaintiff, burglary, possession of a firearm for

an unlawful purpose, two counts of endangering the welfare of a child (Je.L, and

Ji.L, respectively), and certain other offenses.

On March 28, 2018, the court sentenced defendant to a term of eight years

of incarceration, with an eighty-five percent period of parole ineligibility,

pursuant to the No Early Release Act, N.J.S.A. 2C:43-72. The judge ordered

that defendant was to have no contact with Je.L. or Ji.L. for six months after the

sentencing date. The judge entered a judgment of conviction dated April 6,

2018.3

Thereafter, plaintiff filed a pro se motion in the Family Part to amend the

December 18, 2014 FRO to add the parties' three children as persons protected

3 We note that defendant appealed from the judgment of conviction. The appeal was docketed under A-4297-17. In an opinion also filed this date, we affirm defendant's convictions. A-5714-17T2 4 by the order. On June 28, 2018, the judge held a hearing on the motion.

Defendant was present for the hearing. She also was self-represented.

Plaintiff informed the judge that on May 17, 2015, defendant entered the

parties' home, in violation of the FRO. She had a gun, knife and bullets, and

tried to shoot him in front of two of the children. Plaintiff stated that one of the

children was forced to punch defendant to have her let go of the gun. Another

child barricaded himself in his bedroom during the incident and, according to

plaintiff, became withdrawn since. He asserted that because defendant refused

to accept a plea deal, the children were forced to testify at her trial, which was

very upsetting for them.

Plaintiff also stated the children remained upset about the incident and

wanted to be added as protected parties under the FRO, but they did not want to

face defendant in the courtroom. Plaintiff represented to the judge that he had

spoken with the three children and confirmed their wishes. He said he had

signed and notarized statements from Je.L. and Ji.L., but Jo.L. was not able to

complete the statement in time. The judge told plaintiff, "Your representation

is sufficient to the court," and the judge did not review the statements.

In response, defendant told the judge she did not know what the hearing

was about because she only received a notice that plaintiff was seeking a

A-5714-17T2 5 modification of the FRO, and she "was never given a copy of" plaintiff's motion

papers. The judge provided defendant with a copy of the papers and informed

her that plaintiff had accurately summarized the motion.

The judge cautioned defendant not to make statements on the record

pertaining to her criminal matter and explained that he was considering

modifying the terms of the FRO to prohibit contact between defendant and the

children, now that the children were at an age for which Dr. Montgomery's

services were no longer appropriate.

Defendant argued that the children should themselves request that the

court add them as protected parties under FRO and asked the judge what would

happen if the children wished to contact her. The judge responded that the

children would not be precluded from contacting her, but that she would be

barred from responding unless they moved to modify the FRO or she so moved.

The judge explained that since defendant's only contact with the children

was through the reunification services with Dr. Montgomery, and those services

were no longer appropriate, the prior provision "flows into a no-contact"

provision. The judge stated that such a change in the FRO did not require the

children's presence in court because the court was not "readdressing any matter

A-5714-17T2 6 on the merits," but merely modifying the prior order in light of the passage of

time and the fact that the children were no longer minors.

After the colloquy, the judge stated that plaintiff's request to modify the

restraining order was appropriate. The judge again informed defendant she

could move to modify the order when it was appropriate to do so, such as if the

children informed her that they wished to have contact with her.

The judge placed a call to Jo.L., who stated that he was unable to speak

because he was about to begin a meeting. The judge informed Jo.L. he would

not include him in the modified order. Jo.L. told the judge he understood.

The judge then asked defendant whether she understood the proceedings

and whether she had any questions regarding the conditions of the order . She

responded that she did not have questions and that she understood the

conditions.

The judge accordingly entered the amended FRO, which states in part that:

"[Je.L.] and [Ji.L.] are listed as protected parties[.] All provisions of visitation

are removed and [will] be addressed in the future under the FM case." The judge

deleted the provision which stated that the parties may both be present during

sessions with Dr. Montgomery, and the provision permitting defendant to have

A-5714-17T2 7 Skype communication with the children. All other terms of the December 18,

2014 FRO remained the same. This appealed followed.

II.

On appeal, defendant contends that the Family Part judge was unclear

regarding the facts of the parties' case and its procedural history. She claims

that at the June 20, 2012 FRO hearing, the court found she did not commit any

acts of domestic violence. She asserts that the judge erred by considering the

children "protected parties" under the prior orders.

She further argues that the judge was mistaken in his interpretation of the

December 18, 2014 FRO. She states that the order only permitted the parties to

attend parenting sessions with Dr. Montgomery, whereas her supervised

visitation with the children occurred through another agency.

Defendant also asserts that, pursuant to the most recent FRO, she was

entitled to telephone and Skype contact with the children. She contends the

court lacked the "complete record" for modification of the FRO, which is

required by caselaw and the judge "was just making it up as he went along."

In response to these arguments, plaintiff contends the judge was aware of

the prior history of the case, including the crimes plaintiff committed on May

A-5714-17T2 8 17, 2015. He asserts plaintiff irreparably harmed the children and they deserve

protection from her.

A trial court's findings of fact "are binding on appeal when supported by

adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 412

(1998). We will set aside a trial court's findings only when "'they 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 Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (1974)). We

do not, however, owe any deference to the trial court's interpretation of the law,

which we review de novo. Manalapan Realty, LP v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995).

Rule 1:7-4 requires the court to "find the facts and state its conclusions of

law thereon in all actions tried without a jury." A trial court "must state clearly

its factual findings and correlate them with the relevant legal conclusions."

Curtis v. Finneran, 83 N.J. 563, 570 (1983). We cannot engage in meaningful

appellate review if the trial court does not set forth the reasons for its decision.

Yueh v. Yueh, 329 N.J. Super. 447, 469 (App. Div. 2000) (citing Salch v. Salch,

240 N.J. Super. 441, 443 (App. Div. 1990)).

A-5714-17T2 9 N.J.S.A. 2C:25-29(d) allows a court to dissolve or modify a final

restraining order entered pursuant to the PDVA "[u]pon good cause shown." In

determining if the applicant has shown good cause, the court should consider

the factors set forth in Carfagno v. Carfagno, 288 N.J. Super. 424, 435 (Ch. Div.

1995). Sweeney v. Honachefsky, 313 N.J. Super. 443, 447-48 (App. Div. 1998).

Those factors are:

(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.]

N.J.S.A. 2C:25-29(b) also allows the court to "grant any relief necessary

to prevent further abuse," including:

[a]n order restraining the defendant from making contact with the plaintiff or others, including an order forbidding the defendant from personally or through an

A-5714-17T2 10 agent initiating any communication likely to cause annoyance or alarm including, but not limited to, personal, written, or telephone contact with the victim or other family members, or their employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.

[N.J.S.A. 2C:25-29(b)(7).]

Here, the judge did not provide sufficient findings of fact to support his

decision to modify the FRO. The judge correctly found that the provision of the

December 18, 2014 FRO, which permitted the parties to meet with Dr.

Montgomery for parenting sessions, was no longer necessary since the children

had reached adulthood. This finding, however, did not address why the court

added the children as protected parties and informed defendant that she may not

have contact with them, either directly or through a third party.

The judge also did not explain why he had deleted the provision of the

FRO, which allowed her to have Skype communication with the children. There

is nothing in any of the prior orders that conditions the Skype communications

on the children being minors, or states that such communications will cease

when the children turn eighteen years of age.

The judge also did not address the Carfagno factors. We note that most

of those factors pertain to a defendant's request to dissolve a restraining order,

A-5714-17T2 11 and this was not the basis of plaintiff's motion. However, factor nine requires

the court to consider the good faith of the moving party in seeking the

modification. Moreover, factor eleven requires the court to consider any other

matters the court deems relevant. The trial court did not address those factors.

In addition, as noted, N.J.S.A. 2C:25-29(b)(7) permits the court to add

family members of a victim of domestic violence children as protected parties

where defendant's contacting them would likely cause the victim to suffer

annoyance or alarm. We note that the orders previously entered by the courts

did not prohibit defendant from all communications with Je.L. and Ji.L.

Indeed, the September 26, 2012 order entered in the FM docket allowed

defendant to have supervised visitation, and orders entered in this matter on

September 27, 2012 and December 18, 2014, permitted defendant to utilize

Skype to communicate with the children. While the events of May 17, 2015,

and defendant's criminal convictions may have fundamentally changed her

relationship with her children, the court made no findings to explain the need

for the prohibition on further communications with Je.L. and Ji.L.

Furthermore, N.J.S.A. 2C:25-29(d) provides that a FRO may be dissolved

or modified upon application "only if the judge who dissolves or modifies the

order is the same judge who entered the order, or has available a complete record

A-5714-17T2 12 of the hearing or hearings on which the order was based." The complete record

must include, "at a minimum, all pleadings and orders, the court file, and a

complete transcript of the final restraining order hearing." Kanaszka v. Kunen,

313 N.J. Super. 600, 606 (App. Div. 1998). It is not clear from this record before

us that the judge had access to the complete record of the prior proceedings upon

which the prior orders were based.4

We also note that N.J.S.A. 2C:25-19(d) defines "[v]ictim of domestic

violence" to include "any person who is 18 years of age or older or who is an

emancipated minor . . . ." N.J.S.A. 2C:25-29(b)(3) provides that a FRO "shall

protect the safety and well-being of the plaintiff and minor children," while

N.J.S.A. 2C:25-29(b)(14) permits the court to "grant[] any other appropriate

relief for the plaintiff and dependent children . . . ."

In Filippone v. Lee, 304 N.J. Super. 301, 310 (App. Div. 1997), we stated

that the Act accords emancipated minors "the right themselves to seek protection

under the Act." Thus, if defendant's children believe they are victims of

4 On appeal, defendant asserts that the court never made a finding that she committed an act of domestic violence. We disagree. The June 20, 2012 FRO states, "For reasons placed on the record the court finds defendant did commit an act of domestic violence." Indeed, without that finding, the FRO would not have been entered. A-5714-17T2 13 domestic violence, they may file their own complaint and seek relief under the

PDVA.

However, where, as here, plaintiff seeks to modify an FRO to include

emancipated children as protected parties and to prohibit defendant from having

any communications with them, the basis for such relief must be established

under N.J.S.A. 2C:25-29(b)(7). Plaintiff must show that such communications

"would be likely to cause annoyance or alarm" to plaintiff, the victim of

defendant's acts of domestic violence. Ibid.

Accordingly, we reverse the provision of the order of March 28, 2018,

which barred defendant from having communications with Je.L. and Ji.L. and

remand the matter to the trial court for further consideration of plaintiff's motion

for modification of the FRO. The other provisions of the March 28, 2018 order

shall remain in full force and effect pending further order of the trial court.

On remand, the court shall consider whether the modification of the FRO

that plaintiff seeks is warranted under N.J.S.A. 2C:25-29(b)(7). In this regard,

the court shall consider whether plaintiff is the appropriate party to seek a

prohibition on defendant's communications with her emancipated children, or

whether the children should seek such relief in their own action.

A-5714-17T2 14 If the court finds that plaintiff's request for modification of the FRO is

warranted under the circumstances, the court shall consider the Carfagno factors

in deciding whether plaintiff has shown good cause for the modification . The

court shall make appropriate findings of fact and conclusions of law, as required

by Rule 1:7-4.

III.

Defendant also argues that only plaintiff was "covered" under the prior

FROs, not the children. She asserts that since the children have reached

adulthood, they should themselves apply for a restraining order if they believe

such relief is warranted.

Defendant contends she was never a danger to her children and plaintiff

coerced the children to have the court prohibit defendant from having any

communications with them. She argues that the court's modification of the FRO

was procedurally improper, since neither Je.L. nor Ji.L.were present at the

hearing and did not testify.

In response, plaintiff asserts that Je.L. and Ji.L. were victims of domestic

violence. He contends the Family Part judge understood that Je.L. and Ji.L. did

not want to testify in defendant's presence because they had been traumatized

by testifying against their mother at her criminal trial.

A-5714-17T2 15 We see no need to address these additional arguments, which the parties

can raise in the remand proceedings. We note, however, that the Family Part

judge did not make a finding that Je.L. or Ji.L. was a victim of domestic violence

under the PDVA. Moreover, as we have explained, the judge did not make the

findings of fact and conclusions of law required to modify the FRO and prohibit

defendant from any further communications with Je.L. and Ji.L.

Reversed and remanded for further proceedings in conformity with this

opinion. We do not retain jurisdiction.

A-5714-17T2 16