Recently, the Appellate Division in the unpublished decision of A.V. v. A.V., Docket No. A-2045-07T1, decided February 18, 2008, reversed and remanded the trial court’s denial of defendant-appellant’s motion to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.