G.M. v. C.V.

• Decision Date: 17 January 2018
• Docket Number: DOCKET NO. A–4820–15T4
• Parties: G.M., Plaintiff–Respondent, v. C.V., Defendant–Appellant.
• Court: New Jersey Superior Court — Appellate Division

453 N.J.Super. 1

179 A.3d 413

G.M., Plaintiff–Respondent,

v.C.V., Defendant–Appellant.

DOCKET NO. A–4820–15T4

Superior Court of New Jersey, Appellate Division.

Argued November 1, 2017

Decided January 17, 2018

Steven M. Resnick argued the cause for appellant (Ziegler & Zemsky, LLC, attorneys; Steven M. Resnick, on the brief).

Laurie A. Bernstein argued the cause for respondent.

Before Judges Fuentes, Manahan, and Suter.

RECORD IMPOUNDED

The opinion of the court was delivered by

SUTER, J.A.D.

Defendant C.V.¹ appeals the May 6, 2016 order that denied her request to vacate a final restraining order (FRO) entered in 2004 under the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25–17 to –35, and the June 10, 2016 order that denied reconsideration. Defendant's motion to dissolve the FRO was denied because it did not include a transcript of the underlying 2004 FRO hearing, even though the audio record of that proceeding apparently is not capable of transcription. We reverse and remand for the Family Part to verify the unavailability of the audio record of the FRO hearing, to determine whether defendant has shown prima facie evidence of changed circumstances to dissolve the FRO, and unless she has not met this burden, to reconstruct the record of the FRO hearing consistent with the procedures of this opinion.

I

The parties divorced in March 2004 after a ten-year marriage. Of their three children, one is emancipated, one is in college and one is a teenager, who resides with defendant. Plaintiff moved to Florida and remarried in 2014.

In August 2004, plaintiff obtained a temporary restraining order (TRO) under the Act against defendant, alleging as a predicate offense that defendant was harassing him.² Plaintiff's complaint stated that defendant made "repeated calls to [plaintiff] and others" that were "harassing and threatening," causing him fear. She repeatedly called plaintiff's girlfriend.

Plaintiff also claimed, in the original request for a restraining order, that defendant had a history of committing acts of domestic violence against him. He accused defendant of coming into the house and taking items belonging to the children; asserting in vulgar language her claim to ownership of the house; demanding that plaintiff move into the laundry room; stabbing him in the arm; running after him with two butcher knives; locking him out of the house in cold weather when he was scheduled for tests on his heart; keeping him up by flashing lights; chasing and hitting him with a battery charger while disparaging him with coarse language; threatening to run her car off the road while he was a passenger; hitting him in the head with a tripod; locking him out of the house with the cat; and kicking him in the ribs, legs, and chest, spitting in his face, and calling him a "f**king loser" and "piece of s**t."

The FRO entered on August 18, 2004 by Judge John B. Dangler³ provided that defendant committed "an act of domestic violence." It restrained defendant from contacting plaintiff's girlfriend, her employer, and plaintiff's brother and sister-in-law. Her communication with plaintiff was to be limited to non-harassing/non-abusive parenting issues concerning the children. The court also ordered defendant to have a mental health assessment. Defendant did not appeal the FRO.

In March 2016, defendant made application pursuant to N.J.S.A. 2C:25–29(d) to dissolve the FRO, alleging a "substantial change of circumstances" since its entry nearly twelve years earlier in 2004. In her supporting certification, defendant alleged the FRO should be dissolved to permit the parties to mediate a new parenting time schedule. She alleged the FRO posed a hardship to her in obtaining other employment. Other changed circumstances since 2004 included plaintiff's move to Florida and the support of his former girlfriend to vacate the FRO.

Defendant claimed that plaintiff no longer feared her. She alleged that in 2006, they shared a hotel room for a week with their children while at a tournament in Florida. They also entered into a real estate joint venture. According to defendant, plaintiff attended her fortieth birthday party in 2008 at his restaurant, and he stayed with the children and her parents in Hilton Head. She claimed he made sexual advances to her. With respect to his current wife, defendant claims they communicated cordially at least until 2014 and 2015 when defendant filed post-judgment matrimonial orders to show cause, accusing plaintiff of taking their teenaged son to Florida for spring break and not timely returning him.

Defendant's application to dissolve the FRO did not include the transcript of the 2004 FRO hearing. By way of explanation, defendant attached a copy of an e-mail from the Morris County Superior Court Operations Division that stated, "neither tape is working, so there is nothing for you to listen to." A later e-mail reported that "it was discovered that one of the tapes was blank," but there was a second half with the judge's decision. A May 4, 2016 certification from a tape transcript processing employee in the Morris County vicinage stated that the audio tapes of the 2004 FRO hearing were blank.

Plaintiff "strongly" opposed the dissolution of the FRO and filed a cross-motion for attorney's fees.⁴ In his certification, plaintiff alleged defendant was "violent, irrational, and mentally unstable." He remained "extremely fearful of [her] and very concerned about [his] safety and security" should the FRO be dissolved. He denied sharing a hotel room with defendant and the children, hosting a birthday party for her, staying at Hilton Head with her parents, or making sexual advances. He emphasized that the real estate investment in 2006 was conducted through an attorney. Plaintiff claimed that in 2014, defendant called the former spouse of his current wife (Rhonda) and made spurious accusations concerning his interactions with the children and his relationship with Rhonda. Plaintiff also rejected any proposal to mediate parenting time issues. The parties had been in court in 2014, 2015 and 2016 on multiple post-judgment matrimonial motions concerning parenting time with their teenaged son and other related matters.

In an order dated May 6, 2016, the Family Part denied defendant's application to dissolve the FRO because it did not include a copy of the 2004 FRO hearing transcript. The court based its ruling on the plain language in N.J.S.A. 2C:25–29(d), which requires a "complete record of the hearing" before dissolving or modifying any final order. The Family Part also expressly relied on this court's decision in Kanaszka v. Kunen, 313 N.J. Super. 600, 713 A.2d 565 (App. Div. 1998), which held:

In cases where the motion judge did not enter the final restraining order, we hold the "complete record" requirement of the statute includes, at a minimum, all pleadings and orders, the court file, and a complete transcript of the final restraining order hearing. Without the ability to review the transcript, the motion judge is unable to properly evaluate the application for dismissal.

[ Id. at 606, 713 A.2d 565.]

Noting that defendant had the burden of proof and the primary goal of the Act was to protect victims of domestic violence, the Family Part ruled that defendant's application had a "procedurally ... fatal defect" without the transcript. The court dismissed defendant's application without prejudice, concluding it was "prohibited" from determining the merits of the application without the transcript of the FRO hearing.

In an order dated June 10, 2016, the court denied defendant's application for reconsideration. In its written statement of reasons, the court noted defendant did not allege any new facts warranting reconsideration. Without the transcript, it had "almost no record on which to rely" in analyzing whether plaintiff had an objective fear of defendant or whether any of the factors set forth in Carfagno v. Carfagno,⁵ for determining if good cause had been shown, were present. The court stated that the FRO did not "state the underlying predicate act" and certifications from the parties did not "illuminate details of the underlying incident of domestic violence."

By weighing the various interests, the Family Part rejected defendant's contention, both facially and as applied, that she was deprived of due process by being "unable to proceed past the pleading stage." Plaintiff's private interest in retaining the FRO weighed more heavily than defendant's interest in dissolving the FRO because the necessity for the transcript was "to inform any future judge of the underlying events." The risk of erroneous deprivation inured to both parties, but the lack of a transcript could "severely prejudice ... [p]laintiff" because the domestic violence evidence might be stale or witnesses might be lost. Given the State's interest in protecting its citizens who are victims of domestic violence, the Act provided only "narrow circumstances" to dissolve the restraints. The Family Part did not address defendant's request to reconstruct the FRO hearing record, which she raised for the first time in her motion for reconsideration.

On appeal, defendant contends the court erred by not allowing the 2004 FRO record to be reconstructed so that her application to dissolve the FRO could be heard. At the oral argument of the appeal, defendant's counsel suggested a two-step hearing process where the court would first reconstruct the record of the FRO and then would address the merits of the application to dismiss the restraints. Plaintiff argues that the trial court was correct to deny the application because a transcript was required. Plaintiff suggests that defendant's relief must come from the Legislature by way of an amendment of the Act.

Under these circumstances, we conclude that fundamental fairness and due process of law require the Family Part to confer with the parties and reconstruct the record of the FRO hearing. We thus reverse and remand for proceedings...