DISSOLVING A FINAL RESTRAINING ORDER
Recently, the Appellate Division in the unpublished decision of A.V. v. A.V., Docket No. A-2045-07T1, decided February 18, 2008, reversed and remanded the trial court's denial of defendant-appellant's motion to dissolve a Final Restraining Order and award of counsel fees.
In this matter, the parties had been married for approximately 5 years. Two children were born during the marriage, although one is now acknowledged not to be the biological child of defendant. The domestic violence matter arose when defendant learned of plaintiff's extra-marital affairs in the summer of 2005. During a series of arguments regarding plaintiff's infidelities and defendant's discovery of them, the intensity of which rose until the parties got into a physical altercation. Defendant then obtained a TRO against plaintiff. Five days later, plaintiff filed a cross complaint and approximately one month later, the matter went to trial for the determination of an FRO.
At trial, the court entered an FRO against defendant. The parties then continued with their divorce proceedings. During the divorce, information came out, which contradicted other information and testimony plaintiff had given during the domestic violence trial. After the FRO was entered, plaintiff retained custody of the minor children, however approximately one year later, DYFS removed the children from plaintiff's home and placed defendant's biological child with him. Subsequently, the parties resolved the issue of custody and parenting time.
In November 2007, defendant filed a motion seeking to dissolve the FRO, in which he argued that he and plaintiff were in communication regarding their child and that there had been no problems since the FRO was entered two years ago. Defendant noted that plaintiff did not claim that she was in fear of him or that there was any reason to continue the restraints in the FRO. Plaintiff opposed his application arguing that if the FRO was dismissed, the cycle of violence would continue. She also claimed, without providing any evidentiary support, that defendant intended to jeopardize her immigration status and negatively impact her ability to regain custody of the other child removed by DYFS.
During the oral argument of defendant's motion, the trial court asked plaintiff whether she was still fearful of defendant. When she responded "yes", defendant's counsel then asked to cross-examine plaintiff. The request was denied as the court indicated that there was a language barrier and that no interpreter was present.
Defendant appealed and the Appellate Division found the trial court's refusal to allow cross examination of plaintiff reversible error. This was especially so because plaintiff did not contend in her opposition to defendant's application that she feared defendant, rather it was something the trial court elicited on its own. Moreover, defendant had a right to cross examine plaintiff as to this issue, given her lack of credibility as demonstrated in the past. On remand, the trial court should consider the following factors when determining if the FRO should be dissolved:
1) Whether the complainant consents to the dissolution;
2) Whether the complainant legitimately continues to fear the defendant;
3) The nature of the parties' present relationship;
4) Whether there have been any violations of the restraining order;
5) Whether the defendant has alcohol, drug abuse or violence issues;
6) Whether the defendant has had counseling; and
7) Whether there is a history of domestic violence and prior restraining orders.
As to the issue of counsel fees, the Appellate Division stated that this too should be reversed and remanded consistent with the plenary hearing to be conducted to determine whether defendant has met his burden of proof for the dissolution of the FRO.
