Untitled Document

Dissolving Restraining Orders

Carfagno v. Carfagno, 288 N.J.Super. 424, 672 A.2d 751(N.J.Super.Ch.Div. 11/08/1995)

[6] Jeney & Kingsland, Attorneys for Plaintiff (Robert J. Jeney, Jr., Esq. appearing).

[7] Ferrara, Siberine, Woodford & Rizzo, Attorneys for Defendant (Mary Ann Bauer, Esq. appearing).

[12] The question presented is whether the defendant has shown good cause to dissolve a final restraining order issued pursuant to the Prevention of Domestic Violence Act of 1990 ("the Act").

[14] On May 13, 1992, Ms. Carfagno filed a domestic violence complaint against Mr. Carfagno for allegedly harassing her. The harassment consisted of Mr. Carfagno telephoning Ms. Carfagno four times per day, Mr. Carfagno waiting at Ms. Carfagno's home, and Mr. Carfagno taking Ms. Carfagno's automobile without permission. On May 21, 1992, the court found that Mr. Carfagno committed the above alleged acts of domestic violence and entered a final restraining order against Mr. Carfagno. The order restrains Mr. Carfagno from contacting Ms. Carfagno, except to discuss the welfare of the parties' child in Ms. Carfagno's custody.

[15] On September 3, 1992, Mr. Carfagno pled guilty to contempt of the final restraining order for following Ms. Carfagno, while she was driving, and directing harassing communications toward her. Mr. Carfagno received a noncustodial sentence for this conviction.

[16] Mr. Carfagno requested an order against Ms. Carfagno and on September 16, 1992, the court entered a final restraining order against Ms. Carfagno, restraining her from contacting Mr. Carfagno except to discuss matters involving the welfare of the child.

[17] On March 3, 1994, the court found Mr. Carfagno guilty of contempt for the second time for telephoning Ms. Carfagno, on her car telephone, stating that he was following her. For this conviction, the court sentenced Mr. Carfagno to a 30-day custodial term plus one year of probation. Mr. Carfagno appealed this conviction, and the Appellate Division affirmed the judgment of this court.

[18] Presently, Mr. Carfagno has applied to dissolve the final restraining order pursuant to N.J.S.A. 2C:25-29(d). Counsel for both parties submitted briefs and certifications to support their positions. The court heard argument of counsel and testimony from both parties on November 8, 1995.

[19] Mr. Carfagno argues that the court should dissolve the final restraining order because (1) there have been no incidents between the parties since he was found guilty of contempt for the second time; (2) it is in the best interests of the child that the court dissolve the final restraining order; (3) both parties have "inadvertently violated the orders"; (4) Ms. Carfagno does not presently need the order for protection; and (5) Ms. Carfagno is opposing Mr. Carfagno's request in bad faith to prevent him from obtaining full-time employment with the Beach Haven, N.J., Police Department.

[20] Ms. Carfagno argues that the court should deny Mr. Carfagno's request because (1) there have been incidents between the parties since 1993; (2) she continues to fear Mr. Carfagno; (3) there have not been mutual violations of the final restraining orders; and (4) Mr. Carfagno is motivated to dissolve the final restraining order only to obtain full-time employment with the Beach Haven, N.J., Police Department.

[21] At oral argument, counsel for Mr. Carfagno argued that Ms. Carfagno's assertion of fear lacked credibility. Noting that the court cannot decide credibility on the papers alone, the court scheduled a short plenary hearing where both parties offered testimony. See Harrington v. Harrington, 281 N.J. Super. 39, 47, 656 A.2d 456 (App. Div. 1995) (where the parties' certifications present a genuine issue of material fact, the court must hold a plenary hearing).

[22] At the plenary hearing, Mr. Carfagno testified in part that, during telephone conversations with Ms. Carfagno regarding the child, Ms. Carfagno was verbally aggressive to Mr. Carfagno, resulting in arguments. Ms. Carfagno testified in part that the parties argued most of the time during the telephone conversations. Ms. Carfagno admitted that she did call Mr. Carfagno "a jerk" but that she did so because Mr. Carfagno forgot to pick the child up for visitation after school and the child waited at school for over two hours as a result. Ms. Carfagno asserted that she continues to be afraid of Mr. Carfagno because Mr. Carfagno constantly harassed her for a seven month period before the entry of the 1992 final restraining order, because Mr. Carfagno violated the final restraining order twice, because she believes that Mr. Carfagno is still watching and following her, and because Mr. Carfagno has continued to threaten her.

[24] The court finds that Mr. Carfagno has continued to attempt to assert control and power over Ms. Carfagno. Mr. Carfagno has twice recently provoked Ms. Carfagno to argue in regard to the child. The court notes that Mr. Carfagno has been convicted twice for contempt for violating the final restraining order.

[25] The court also finds that Ms. Carfagno continues to be afraid of Mr. Carfagno, both objectively and subjectively. Ms. Carfagno testified that she feared Mr. Carfagno. The court finds Ms. Carfagno's testimony to be credible despite Mr. Carfagno's assertions that she really does not fear him. Moreover, the court finds that Ms. Carfagno's fear of Mr. Carfagno is objectively reasonable because the final restraining order arose from circumstances where Mr. Carfagno was harassing and following Ms. Carfagno and because Mr. Carfagno has violated this order at least two times by harassing and following Ms. Carfagno. The court's finding that Mr. Carfagno continues to attempt to assert power and control over Ms. Carfagno bolsters the court's finding that Ms. Carfagno objectively fears Mr. Carfagno.

[26] The court also finds that Ms. Carfagno has not consented to dissolving the final restraining order. The court further finds that Ms. Carfagno did not provoke Mr. Carfagno to start arguing with her in regard to the child. The court further finds that Ms. Carfagno is not motivated to prevent Mr. Carfagno from obtaining full time employment and has opposed Mr. Carfagno's application in good faith.

[28] Under N.J.S.A. 2C:25-29(d) the court may dissolve or modify a final restraining order "upon good cause shown." Generally, a court may dissolve an injunction where there is a "a change of circumstances [whereby] the continued enforcement of the injunctive process would be inequitable, oppressive, or unjust, or in contravention of the policy of the law." Johnson & Johnson v. Weissbard, 11 N.J. 552, 555, 95 A.2d 403 (1953). For the reasons stated below, the court finds that Mr. Carfagno has failed to show good cause to dissolve the order.

[29] In N.J.S.A. 2C:25-18, the Legislature provided the legislative findings and declarations as related to the Act:

[30] "... It is therefore, the intent of the Legislature to assure the victims of domestic violence the maximum protection from abuse the law can provide... Further, it is the responsibility of the courts to protect the victims of violence that occurs in a family or family-like setting by providing access to both emergent and long-term civil and criminal remedies and sanctions, and by ordering those remedies and sanctions that are available to assure the safety of the victims and the public..."

[31] The Legislature intended to protect the victims -- not to punish the person who committed the act of domestic violence. See generally Trans American Trucking Service, Inc. v. Ruane, 273 N.J. Super. 130, 133, 641 A.2d 274 (App. Div. 1994) (purpose of an injunction is to protect injured party and not to punish the offending party).

[32] There are no published decisions regarding the application of N.J.S.A. 2C:25-29(d). Although two published decisions state that reconciliation of the parties acts as a de facto vacation of the restraining order, Mohamed v. Mohamed, 232 N.J. Super. 474, 477, 557 A.2d 696 (App. Div. 1989); Hayes v. Hayes, 251 N.J. Super. 160, 167, 597 A.2d 567 (Ch. Div. 1991), a more recent case has suggested that the court must first make an independent finding that continued protection is unnecessary before vacating a restraining order due to reconciliation. Torres v. Lancellotti, 257 N.J. Super. 126, 128, 607 A.2d 1375 (Ch. Div. 1992). These three cases do not address the factual inquiry that a court must perform when the defendant requests dissolution of a final restraining order in the absence of reconciliation. Therefore, this court concludes that the following offers a framework of legal analysis that may be followed when faced with an application to dissolve a final restraining order under N.J.S.A. 2C:25-29(d).

[33] To accomplish the goal of protecting the victim, courts should consider a number of factors when determining whether good cause has been shown that the final restraining order should be dissolved upon request of the defendant: (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.

[34] FACTORS TO BE CONSIDERED IN DETERMINING WHETHER DEFENDANT HAS ESTABLISHED GOOD CAUSE

[36] The first factor is whether the victim consents to dissolve the final restraining order. Where the victim has consented to lifting the restraining order and the court finds that the victim is doing so voluntarily, the court should dissolve the order without further consideration or analysis.

[37] The Legislature intended that the courts should follow the victim's request to dissolve a domestic violence order or dismiss a domestic violence complaint without further legal analysis. When construing a statute, the court must follow the legislative intent, considering the policy underlying the statute. Lesniak v. Budzash, 133 N.J. 1, 8, 626 A.2d 1073 (1993). "A statute is not to be given an arbitrary construction ... but rather one that will advance the sense and meaning fairly deducible from the context." Id. at 14.

[38] The policy of the Act is to provide broad protection for the victim. N.J.S.A. 2C:25-18. The court notes that the Legislature provided that a restraining order would be a civil remedy, N.J.S.A. 2C:25-18 (legislative declarations) and that the victim -- not the State -- files the complaint to obtain the restraining order, N.J.S.A. 2C:25-23 (victims to be notified of their rights to file a civil complaint for a restraining order); N.J.S.A. 2C:25-28(a) (procedures for the victim to file a civil complaint). Thus, when looking at the entire Act, the court concludes that the Legislature intended to provide broad protection to the victim.

[39] If Judges disregard the victim's wishes in determining whether to dismiss a complaint or dissolve a restraining order on the victim's request, this has the effect of discouraging victims from filing complaints when necessary. If the victim perceives that the courts would not be responsive to their request to dismiss the action, that victim or other victims may refrain from filing a domestic violence complaint in the future. Certainly, this is not what the Legislature intended. Thus, if the victim voluntarily requests the court to dismiss a domestic violence action or dissolve a restraining order, the court should grant the request without conducting any further legal analysis.

[40] Here, Ms. Carfagno has not consented to dissolving the final restraining order. Thus, this factor points to continuing the restraining order.

[42] The Act protects victims from physical harm. Yet, physical safety is not all that the Legislature intended to protect. Recognizing that domestic violence occurs in a relationship where one party asserts power and control over the other, the victim is also protected from mental or emotional harm.

[43] Fear of the defendant is the center of the cycle of power and control existing in domestic violence situations. Restraining orders have the effect of empowering the victim to stand up to the defendant. Thus, fear is important to consider.

[44] Fear of the defendant is especially important when the parties share children. In domestic violence cas