Dissolving A Final Restraining Order In New Jersey Requires A Trial If Genuine Issues of Material Fact Exist

T.S. v. G.K.

Docket No. A-2095-22

Decided June 14, 2024

Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.

In a recent unpublished decision, the Appellate Division of New Jersey reversed the denial of a motion to dissolve a Final Restraining Order (FRO) after defendant demonstrated a genuine issue of material fact requiring a plenary hearing (trial).

In T.S. v. G.K., Plaintiff and defendant were in a dating relationship for two and a half years before the parties parted ways in October 2019. In December 2019, plaintiff obtained a temporary restraining order (TRO) against defendant alleging that defendant physically assaulted her with his car in October, sent her multiple voicemails, and sent her fifty-five text messages in the month of December, which left her in fear of him. She claimed that between December 5 and 16, defendant’s actions and messages were getting “more aggressive” as he continued to repeatedly text her, leave her voice messages, and send her packages mailed to her sister’s residence, despite plaintiff’s lack of any response. With respect to the prior history of domestic violence, her TRO alleged that during an October 2019 physical altercation, defendant ran over her left foot causing her to “fall and receive multiple injuries,” including a broken toe, stitches to her upper right eye, and multiple bruises.

In February 2020, the case was scheduled to proceed to a hearing on plaintiff’s FRO application. Both parties appeared, represented by counsel. Prior to the commencement of a hearing, defendant stipulated to the predicate act of harassment. Specifically, he stipulated he texted plaintiff approximately fifty-five times “in a very short period of time” with the intent to harass her, but did not stipulate to the contents of any of the text messages. He did not stipulate to any other allegation in the TRO. The trial court entered a FRO in favor of plaintiff based upon defendant’s stipulations.

Defendant moved to dissolve the FRO on November 18, 2022, submitting a certification that asserted changed circumstances warranted dissolution of the restraints. In particular, he asserted the parties had not seen each other or communicated since the issuance of the FRO, the FRO negatively affected his business, his ability to sponsor his wife’s citizenship, and his ability to own a gun. Plaintiff filed opposition to the application, providing a certification where she asserted, she “remained fearful” of defendant, and attached photographs of herself – bloodied and bruised – allegedly depicting her physical condition after defendant injured her with his car in October of 2019. She also attached the emails defendant sent to her in December 2019.

After a review of the parties’ submissions, the same trial judge who presided over defendant’s original stipulation denied the motion to dissolve restraints. Without taking testimony from either party, the court referred to the factors set out in Carfagno, 288 N.J. Super. at 434-35, and made several findings regarding the content of the text messages, the photographs plaintiff attached to her opposition, and the allegations of physical violence in the former TRO to deny the motion.

Defendant appealed and the Appellate Division reversed and remanded the matter, finding the trial court was required to either deny the motion for failing to find a prima facie showing of changed circumstances, or order a plenary hearing based on the genuine issue of material facts related to the other allegations that were not stipulated to at the time the FRO was entered.

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

If you have an FRO against someone else or against yourself, contact the experienced attorneys at Hark & Hark today.  At Hark & Hark, we help clients with prenups, divorce, custody, domestic violence, child support, alimony, adoptions, appeals, and more.

In recognition of these trying financial times, we are reducing fees and working with clients to come up with manageable payment plans. Initial consultation is always free and we are available remotely.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing domestic violence charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Mercer, Ocean, and Salem counties. We represent clients in all towns in New Jersey, including Borough of Clayton, Township of Elk, East Greenwich Township, Township of Logan, Township of Mantua, Township of Monroe, Borough of National Park, Township of Harrison, Borough of Paulsboro, Borough of Pitman, Township of Greenwich, Township of South Harrison, Borough of Swedesboro, Township of Franklin, Borough of Newfield, Township of West Deptford, Township of Washington, City of Woodbury, Borough of Woodbury Heights, Borough of Westville, Borough of Glassboro, Township of Woolwich, Township of Deptford, and Borough of Wenonah.

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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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