NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1037-17T2
K.L.,
Plaintiff-Respondent,
v.
S.L.,
Defendant-Appellant.
___________________________
Submitted August 21, 2018 – Decided August 24, 2018
Before Judges Messano and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Somerset
County, Docket No. FM-18-0475-12.
S.L., appellant pro se.
K.L., respondent pro se.
PER CURIAM
Defendant S.L. appeals from an October 3, 2017 order denying
his application to: (1) vacate provisions of a domestic violence
final restraining order (FRO) prohibiting him from having contact
with his daughter, Sara, and five other individuals; (2) award him
joint legal custody of Sara; (3) expand his parenting time with
Sara; (4) restore limited contact with plaintiff K.L. regarding
parenting issues; and (5) vacate the requirement he obtain pre-
approval from the court before filing any further motions in this
matter.1 We affirm.
Plaintiff and defendant were married in 1996, had their only
child, Sara, in 2005, and were divorced in Texas in 2009.2 While
the final decree of divorce granted defendant custody of Sara,
defendant agreed Sara could move to New Jersey with plaintiff and
live with plaintiff and plaintiff's brother. This move occurred
eleven days after the divorce. In 2011, plaintiff was granted
sole legal and physical custody of Sara. The order also required
defendant to "cease and desist" from contacting plaintiff's
employer and limited defendant's contact with plaintiff to
communication regarding Sara's "health, education, and welfare."
Plaintiff filed a domestic violence complaint against
defendant in 2011 pursuant to the Prevention of Domestic Violence
1
A pseudonym is used in place of the daughter's name to protect
the child's privacy. We identify the parties by initials to
protect their privacy.
2
The divorce proceedings were described in our prior opinion,
K.L. v. S.L., No A-3608-16 (App. Div. March 27, 2018) (K.L. II),
in which we affirmed an order denying defendant's post-judgment
motion to reduce child support, require plaintiff to reimburse
work-related childcare expenses, and reduce defendant's
responsibility for unreimbursed health care expenses and
extracurricular activities.
2 A-1037-17T2
Act (the Act), N.J.S.A. 2C:25-17 to -35. Defendant did not appear
for the domestic violence trial. Pertinent to this appeal,
plaintiff testified to the extensive history of threats and
assaults directed at her by defendant and her resulting fear of
defendant. Finding plaintiff to be "a very credible witness," the
trial court entered an FRO against defendant, barring him from all
communications with plaintiff, Sara, and five other individuals
and suspended his parenting time. Defendant did not appeal the
FRO. The domestic violence proceedings filed by plaintiff against
defendant are described in greater detail in our prior opinion,
K.L. v. S.L., No A-4569-13 (App. Div. August 26, 2015) (K.L. I).
In May 2013, defendant moved to vacate the FRO or, in the
alternative, order a plenary hearing to determine whether a basis
existed for continuing the FRO. The motion was denied in June
2013. The judge issued a twenty-eight-page statement of reasons
explaining his decision. After reviewing the extensive evidence
establishing defendant's abusive behavior, the judge stated:
Defendant ignores that the evidence in this
case was memorable and overwhelming. Rarely
is the [c]ourt presented with such classic
domestic violence behavior. In fact,
[d]efendant's abusive behavior did not confine
itself to the privacy of the parties' home
where it would be the subject of a "he said/she
said" credibility determination. Instead,
[d]efendant exhibited his behavior in a
fashion that it could be objectively reviewed
in the form of emails, letters, taped
3 A-1037-17T2
telephone conversations in which he berated
[p]laintiff and their child as well as abusive
and threatening messages to the [c]ourt and
its staff.
Defendant did not appeal that ruling.
In March 2014, defendant again moved to vacate or, in the
alternative, to amend the FRO to allow him to have contact with
Sara and to reinstate his parenting time. On April 24, 2014, the
motion judge denied defendant's motion in its entirety, concluding
defendant's motion was "essentially the same application" that was
"denied less than ten months before." K.L. I. (slip op. at 6).
Defendant appealed. We affirmed the denial of defendant's motion,
finding defendant "failed to present any significant change in
circumstances that would warrant modification of the FRO." Id.
at 8. We concurred with the motion judge's assessment that
defendant's applications were "glaringly deficient, in light of
the record that clearly established defendant's history of
threatening and assaultive behavior." Id. at 10).
In December 2016, defendant moved to dismiss certain
provisions of the FRO. The motion was denied without prejudice
due to a procedural deficiency. Several months later, defendant
again moved to dismiss the provisions of the FRO: (1) preventing
him from having any contact or parenting time with Sara; (2)
preventing him from any contact with plaintiff regarding parenting
4 A-1037-17T2
issues; and (3) preventing him from having any contact with five
other individuals. The motion also sought an award of joint legal
custody of Sara and parenting time. On March 15, 2017, the trial
court denied the motion "subject to a best interests evaluation."
The statement of reasons accompanying the order required plaintiff
and defendant "to engage in a best interest evaluation on behalf
of [Sara]," by a psychologist mutually selected by the parties.
The judge further stated:
The best interest evaluation shall include,
but is not limited to inquiries involving: (1)
the psychological functioning/capacity of
both parents; (2) the impact their conflicts
have had on [Sara's] emotional well-being; (3)
an appropriate visitation plan for [defendant]
and [Sara] which takes into consideration
[defendant's] Texas residence; and (4) the
recommendation of therapies, including but not
limited to reunification therapy sessions. .
. . Upon completion of the evaluation(s), the
parties (through counsel) must confer with one
another and attempt to reach a mutually
acceptable resolution. Assuming they are
unable to do so, either party may seek relief
by way of regular FM motion, complete with the
best interests evaluation(s) for this
[c]ourt's consideration.
The judge further ordered defendant "shall be prohibited from
filing any further applications for relief without prior
permission from this [c]ourt to do so. Though [defendant] is
entitled to submit requests for relief, same must be pre-approved
prior to converting the submission to a FM motion." This
5 A-1037-17T2
requirement was imposed after defendant had filed six prior motions
involving the "the same type of application." Additionally, the
court noted defendant had filed numerous procedurally deficient
motions despite being made aware of the deficiencies, forcing
plaintiff to incur additional counsel fees and costs. The trial
court determined it "will no longer permit [defendant] to misuse
motion practice or abuse the judicial process through repetitive
filing of deficient motions, to which [plaintiff] must ultimately
respond and incur substantial fees." Defendant did not appeal
this ruling.
In July 2017, defendant again moved to vacate the same
provisions of the FRO, allow scheduled telephonic and Skype
communication with Sara, allow unlimited communication by email
with Sara, implement specified parenting time with Sara, permit
contact with plaintiff regarding parenting issues, and vacate the
FM motion filing restrictions. On October 3, 2017, the trial
court denied the motion in its entirety. In an accompanying
statement of reasons, the trial court provided the following basis
for declining to modify the FRO. Neither plaintiff nor her family
consented to dissolving the FRO. Plaintiff certified she still
lives in "extreme fear" of defendant, as does Sara and her extended
family. While recognizing defendant had complied with the FRO,
had no problems with alcohol abuse, and had engaged in
6 A-1037-17T2
psychological counselling, the trial court concluded defendant had
acted in "bad faith" by engaging in "continuously frivolous
litigation under this docket in the Family Part." Weighing the
factors set forth in Carfagno v. Carfagno, 288 N.J. Super. 424,
435 (Ch. Div. 1995), the trial court determined defendant did not
meet his burden and concluded the FRO must continue in full force.
The trial court declined to adopt the recommendations of the
best interest evaluation submitted by defendant and denied his
application for joint legal custody, expanded parenting time, and
limited contact with plaintiff in light of the denial of his
application to modify the FRO.
With regard to reconsideration of the FM motion filing pre-
approval requirement, the trial court deemed the motion untimely
under Rule 4:49-2. Substantively, the trial court agreed with the
reasoning for establishing the pre-approval requirement,
recognizing the "incredibly negative effect" of frivolous motions
in Family Part cases. The court emphasized this was defendant's
seventh motion to modify provisions in the FRO, several of which
were procedurally deficient even after the trial court brought the
deficiencies to defendant's attention. The trial court also noted
defendant's misreading of the filing restriction. This appeal
followed.
Defendant raises the following issues on appeal:
7 A-1037-17T2
POINT I
THE COURT ERRED BY FAILING TO UNCONDITIONALLY
REMOVE FROM THE FRO ALL OTHER NAMES (BUT
[K.L.]) RAMMED IN ILLEGALLY, WITH LITTLE OR
NO FACTUAL BASIS.
POINT II
THE COURT ERRED BY FAILING TO REMOVE FROM THE
FRO MY DAUGHTER ([Sara]) RAMMED IN ILLEGALLY,
REINSTATE MY PARENTING RIGHTS STRIPPED
ILLEGALLY, AND EXPAND MY PARENTING RIGHTS PER
BEST INTERST EVALUATION.
POINT III
THE COURT ERRED BY FAILING TO REMOVE
RESTRICTIONS ON MY FUTURE FM MOTIONS ENTERED
WITH NO FACTUAL OR LEGAL BASIS.
POINT IV
THE COURT ERRED BY FAILING TO RESTRICT MY
ADVERSARY'S REPEATED ATTEMPTS FOR COUNSEL
FEES.
Our review of a Family Part's order is limited. Cesare v.
Cesare, 154 N.J. 394, 411 (1998). We do not disturb a trial
court's factual findings unless unsupported by "adequate,
substantial and credible evidence," Rova Farms Resort, Inc. v.
Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974), and we pay
particular deference to the Family Part's expertise, Cesare, 154
N.J. at 412-13.
Relief from an FRO is governed by N.J.S.A. 2C:25-29(d), which
requires a showing of good cause. In Kanaszka v. Kunen, 313 N.J.
8 A-1037-17T2
Super. 600, 607-08 (App. Div. 1998), we adopted the eleven non-
exclusive Carfagno factors the trial court should consider when
determining whether good cause has been shown:
(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 trial court must explore and consider the history of the
relationship and prior acts of domestic violence "to fully evaluate
the reasonableness of the victim's continued fear of the
perpetrator" and "the necessity for continued protection."
Kanaszka, 313 N.J. Super. at 607-08 (citations omitted). However,
"[t]he linchpin in any motion addressed to dismissal of a final
restraining order should be whether there have been substantial
changed circumstances since its entry that constitute good cause
for consideration of dismissal." Id. at 609. The same analysis
9 A-1037-17T2
applies to applications to modify or eliminate no contact
provisions relating to additional individuals imposed by an FRO.
See G.M. v. C.V., 453 N.J. Super. 1, 12-13 (App. Div. 2018); T.M.S.
v. W.C.P., 450 N.J. Super. 499, 502 (App. Div. 2017); Kanaszka,
313 N.J. Super. at 608; N.J.S.A. 2C:25-29(d).
In G.M., we explained the burden imposed on the party seeking
to modify or dissolve the FRO and the procedures to be employed
by the trial court:
The party asking to modify or dissolve
the FRO has the "burden to make a prima facie
showing [that] good cause exists for
dissolution of the restraining order prior to
the judge fully considering the application
for dismissal." Kanaszka, 313 N.J. Super. at
608. That party must show "substantial
changes in the circumstances" from what
existed at the final hearing for the court to
"entertain the application for dismissal" in
order that the victim is not "forced to
repeatedly relitigate issues with the
perpetrator, as that itself can constitute a
form of abusive and controlling behavior."
Ibid. A plenary hearing should only be
ordered where this burden is met and there are
"facts in dispute material to a resolution of
the motion . . . . Conclusory allegations
should be disregarded." Ibid. (citing Lepis
v. Lepis, 83 N.J. 139, 159 (1980)).
[G.M., 453 N.J. Super. at 12-13 (alteration
in original).]
Applying these principles, we are satisfied the record fully
supports the Family Part's decision to deny defendant's motion in
its entirety. Defendant's latest motion failed to present any
10 A-1037-17T2
significant change in circumstances that would warrant
modification of the FRO. In June 2013, the judge undertook a
detailed review and carefully analyzed the Carfagno factors. In
the absence of any subsequent significant change, we agree with
the motion judge's conclusion that defendant presented no reason
to revisit the most recent ruling entered less than ten months
earlier, which thoroughly addressed all of defendant's arguments.
The judge's comprehensive statement of reasons fully explored and
considered the extensive history of domestic violence between the
parties. See Kanaszka, 313 N.J. Super. at 607.
Defendant also argues the trial court erred by not vacating
the restriction against filing any further applications for relief
without obtaining prior permission from the trial court to do so.
Here, the restriction does not prevent defendant from seeking
relief. Instead, the restriction only requires pre-approval prior
to converting the application to an FM motion. Notably, defendant
does not contend he has been denied pre-approval by the trial
court.
We are also mindful of the requirement that applications to
dissolve or modify an FRO must be heard by "the same judge who
entered the order, or has available a complete record of the
hearing or hearings on which the order was based." N.J.S.A. 2C:25-
29(d). The "complete record" requirement includes a complete
11 A-1037-17T2
transcript of the FRO hearing. Kanaszka, 313 N.J. Super. at 606.
Screening to determine if a repetitively filing defendant met the
statutory requirements may be appropriate since failure to provide
a complete record of the final FRO hearing is grounds for denial
of the motion. See id. at 607 ("Without the benefit of the final
hearing transcript, the motion judge was unable to fully consider
[defendant's] arguments."). Here, the filing restriction affected
only applications sought to be filed in the FM action, not the
domestic violence proceeding.
Although applied infrequently, restrictions against filing
prospective motions are appropriate in limited circumstances. A
trial court has the power to enjoin prospective harassing
litigation. D'Amore v. D'Amore, 186 N.J. Super. 525, 530 (App.
Div. 1982). "However, 'that power must be exercised consistently
with the fundamental right of the public to access to the courts
in order to secure adjudication of claims on their merits.'"
Rosenblum v. Borough of Closter, 333 N.J. Super. 385, 396 (App.
Div. 2000) (quoting D'Amore, 186 N.J. Super. at 530). Absent
finding a need to control baseless litigation, restricting access
to the court is an abuse of discretion. Parish v. Parish, 412
N.J. Super. 39, 51 (App. Div. 2009)
Defendant relies on the Chancery Division opinion in D'Amore.
D'Amore did not involve a party who repeatedly filed frivolous
12 A-1037-17T2
motions causing the opposing party to incur litigation costs and
absorbing precious court resources. Nor did D'Amore address the
power to enjoin motions where a party had filed numerous frivolous
motions. In such circumstances, restricting access to the courts
may be warranted. "The prehearing examination and screening of
motions is particularly warranted where the history of the
litigation demonstrates the use of repetitive and frivolous
motions." Kozak v. Kozak, 280 N.J. Super. 272, 277 (Ch. Div.
1994).
Considering the history of repetitive, procedurally
deficient, and meritless filings by defendant, we cannot conclude
the trial court abused its discretion by continuing the pre-
approval process. The pre-filing approval requirement is
reasonable, not unduly burdensome, and does not unfairly prejudice
either party. See Parish, 412 N.J. Super. at 75 (Ashrafi, J.,
concurring and dissenting).
The argument raised by defendant in Point IV is without
sufficient merit to warrant discussion in a written opinion. R.
2:11-3(e)(1)(E).
Affirmed.
13 A-1037-17T2