DISSOLVING A FINAL RESTRAINING ORDER IN NEW JERSEY
Docket No. A-4512-19
Decided March 10, 2022
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division of New Jersey affirmed the denial of a motion to dissolve a Final Restraining Order (FRO) after defendant failed to complete his counseling and continued to purchase alcohol despite attending alcohol treatment programs.
On August 1, 2019, plaintiff obtained a temporary restraining order (TRO) in Holmdel Township Municipal Court. Plaintiff alleged “defendant followed her throughout the house[,] screaming and cursing at her for the past three weeks[,]” “defendant drinks to excess and becomes violent[,]” and “defendant will throw household items around causing damage to the residence.” That same day, defendant was arrested and served with the TRO.
After defendant failed to appear for the August 6, 2019 trial, the judge entered an FRO against defendant by way of default based on plaintiff’s testimony. She found defendant was properly served on August 1, 2019 and released from jail on August 5, 2019. The judge also ordered defendant to submit the results of his most recent alcohol evaluation, maintain support of the household, and complete a domestic violence batterer’s abuse counseling program. Defendant did not appeal the entry of the FRO.
On May 22, 2020, defendant moved to dissolve the FRO. At the July 7, 2020 motion hearing, defendant admitted that he had attended only twenty-seven of the approximately forty-one mandatory counseling visits with a batterer’s intervention program. The judge referred to a letter from the program indicating that defendant was “calculating and superficially compliant.” She also considered credit card statements provided by plaintiff showing that, between November 8, 2019 and June 12, 2020, defendant made purchases of liquor totaling $1,973.55. The purchases began two weeks after he completed his alcohol use treatment program. Defendant admitted making the purchases but claimed they were for his friends in his ping-pong and golf groups. Plaintiff’s certification opposed the dissolution of the FRO because she remained fearful of defendant.
After addressing the Carfagno factors, the Court denied the motion without a plenary hearing. Defendant appealed, and the Appellate Division affirmed for substantially the same reasons as the trial court, finding no material dispute of fact and that defendant failed to meet his burden of changed circumstances to dissolve the FRO.
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.
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