                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-3989-16T2


L.P.,

          Plaintiff-Respondent,

v.

R.B.,

     Defendant-Appellant.
__________________________

                    Submitted November 7, 2018 – Decided December 24, 2018

                    Before Judges Yannotti and Gilson.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Bergen County,
                    Docket No. FV-02-0309-15.

                    Richard P. Galler, attorney for appellant.

                    Respondent has not filed a brief.

PER CURIAM

          Defendant appeals from an order entered by the Family Part on March 31,

2017, which denied his motion to dissolve a final restraining order (FRO)
entered pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A.

2C:25-17 to -35. We affirm.

                                          I.

        We briefly summarize the relevant facts and procedural history. On

August 11, 2014, defendant was charged with simple assault in violation of

N.J.S.A. 2C:12-1(a)(1), a disorderly persons offense. The charge arose out of a

domestic dispute between the parties that occurred on August 9, 2014, at

defendant's apartment.

        On August 11, 2014, L.P. filed a domestic violence complaint pursuant to

the PDVA, and sought a temporary restraining order (TRO). The court granted

the TRO and scheduled a hearing on plaintiff's application for a FRO. The court

heard the matter on August 19, 2014. Defendant had notice of the proceeding,

but did not appear.

        Plaintiff testified that she and defendant had been in a dating relationship,

and on August 9, 2014, she went to defendant's apartment. Plaintiff stated that

at the time, another woman was in the apartment. She said defendant grabbed

her, picked her up off the floor, threw her out into the hallway, and shut the

door.




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      Defendant let plaintiff back into the apartment so that she could look for

her keys. She sat down on the couch. According to plaintiff, defendant lifted

her up, carried her to the hall, and threw her against a wall. Plaintiff left. That

evening, she went to a hospital and remained there overnight. Plaintiff testified

that she suffered bruises to her left shoulder and neck. She stated that she feared

defendant because he had acted irrationally.

      The Family Part judge found that defendant had committed a simple

assault upon plaintiff, and plaintiff required a FRO because she was in fear of

defendant. The judge entered the FRO, which required, among other things, that

defendant attend a batterers intervention program.

      On September 17, 2014, defendant appeared in the municipal court on the

criminal charge. Defendant informed the judge he intended to retain counsel,

and the judge adjourned the matter. On November 12, 2014, defendant appeared

again in the municipal court and informed the judge he wanted to consult an

attorney. The judge adjourned the matter again, but told defendant that if he did

not have an attorney on the next scheduled trial date, the matter would proceed

without counsel.

      On December 10, 2014, defendant appeared for trial. Defendant informed

the judge that he did not have an attorney and he wanted to proceed without


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                                        3
counsel. The judge permitted defendant to represent himself. Plaintiff and

defendant testified. After defendant and the municipal prosecutor gave closing

statements, the judge found defendant guilty of simple assault.        The judge

sentenced defendant to one year of probation, and required that he pay a fine,

court costs, and other fees.

      Thereafter, defendant retained an attorney and sought de novo review in

the Law Division. The Law Division judge filed a written opinion dated October

19, 2015, in which she concluded defendant did not knowingly and intelligently

waive his right to counsel under the standards enunciated in State v. Crisafi, 128

N.J. 499, 510-12 (1992), and State v. Reddish, 181 N.J. 553, 593-95 (2004). The

judge vacated the conviction and remanded the matter to the municipal court for

a new trial.

                                       II.

      On January 21, 2016, a different municipal court judge conducted a new

trial in the criminal matter. Plaintiff testified that she had known defendant for

about twenty years, and he was her boyfriend for about a year before the incident

on August 9, 2014. She noted that defendant had lived in her apartment in New

York City for eight months. In April 2014, defendant moved to Lodi.




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      On Saturday morning, August 9, 2014, plaintiff went to defendant's

apartment in Lodi. She arrived there between 9:00 or 9:30 a.m. Plaintiff was

worried because she had not heard from defendant since the previous day.

Plaintiff did not have a key to defendant's apartment, so she knocked on the

door. Defendant opened the door, and she went in. Plaintiff told defendant she

was there because she was worried about him, but he did not respond. She heard

the sound of someone "shuffling around" and said, "[W]hat is that?" Defendant

did not reply.

      Plaintiff started to walk to the rear of the apartment.     According to

plaintiff, defendant picked her up and threw her outside in the hallway. She

claimed she landed against the cement wall. Defendant slammed the door shut.

Plaintiff stated she was stunned and shocked. She got up and checked for bruises

or bleeding. Plaintiff was going to leave, but noticed that she did not have her

shoes or car keys, which apparently fell when defendant picked her up.

      Plaintiff banged on the door and asked defendant to let her in because she

did not have her shoes or car keys. He did not immediately respond, so she

continued to knock on the door "intermittently."      About ten minutes later,

defendant opened the door and plaintiff told defendant she needed her shoes and

keys. Defendant gave her the shoes, and she told him she had to look for her


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                                       5
keys. Defendant allowed plaintiff to look for her keys. She was leaning on the

couch when defendant picked her up a second time and dropped her in the

hallway.

        Plaintiff again banged on defendant's apartment door. She told defendant

she needed her keys. Defendant told her to "get the 'f' out." She asked defendant

for her clothes, which were in the apartment. He opened the door and placed a

bin with her clothes in the hall. She bent down to pick up the bin, and found her

keys in a corner of the hallway. Defendant helped her carry the bin to her car.

        Plaintiff testified that she went home and took a nap. She awoke around

7:00 p.m. feeling "sore and achy." She went to a hospital in New York City and

remained there until around 3:00 or 4:00 a.m. on Sunday. On Monday, August

11, 2014, she went to the police station in Lodi and reported the incident.

        Plaintiff also presented testimony from Detective Eric Castillo, an officer

in the Lodi Police Department. Castillo was the desk officer in the police station

on August 11, 2014. He recalled a female entering and approaching the front

desk.    She reported that she had been involved in an altercation with her

boyfriend. Castillo told plaintiff she was a victim of domestic violence and she

would have to report it.




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                                         6
        Castillo advised plaintiff that she could apply for a TRO. Plaintiff filed a

complaint, and a judge found probable cause defendant had committed an

assault. Thereafter, Castillo and a partner arrested defendant. In his police

report, Castillo noted that he observed scratches on the victim's legs and arm.

        Defendant testified on his own behalf. He stated that he had known

plaintiff for twenty years. They dated on and off and were "romantic" at times.

He lived with plaintiff in New York City for several months, but moved out of

her apartment at the end of March 2014.           Thereafter, they rekindled their

relationship, and plaintiff visited his apartment several times.

        Defendant stated that on August 9, 2014, he was in his apartment and was

awakened by a noise. He heard plaintiff outside "screeching, banging, and

yelling." Defendant opened the door and plaintiff charged in. She began to

argue with his guest, T.W.1 Defendant felt the arguing was "getting worse" so

he picked plaintiff up and put her outside the door to the apartment. He claimed

she was standing. He closed the door. He stated that he did not throw plaintiff

against the wall or drop her on the floor.

        Defendant testified that plaintiff continued to curse and yell. According

to defendant, plaintiff said she could not believe he put her out of his apartment


1
    We use initials to identify this individual, in order to protect her privacy.
                                                                              A-3989-16T2
                                           7
"over this bitch." She continued to bang on the door, and stated that she could

not find her keys. Defendant did not recall plaintiff saying anything about shoes.

He let her in the apartment so she could look for her keys. She started screaming

at T.W., and defendant tried to keep them apart.

      Defendant stated that he was afraid plaintiff was going to attack his guest

and start a fight. He picked plaintiff up and carried her outside of the apartment.

He said he placed her down, feet first. Defendant believed plaintiff had her

shoes at that time. Plaintiff said she wanted her other personal items, which

were in his apartment.

      Defendant put plaintiff's belongings in a plastic bin and brought it out to

her. Then, he escorted plaintiff to her car. Defendant stated that "plaintiff

seemed fine to [him]." He said her hair was not out of place. She did not

complain about any injuries, and did not indicate she was going to call the

police.

      T.W. testified that she has known defendant for about two years. They

became acquainted through their mutual interest in music.           T.W. was in

defendant's apartment on August 9, 2014. She explained that defendant had

asked her to visit him the previous evening to listen to some songs. She stayed




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                                        8
overnight because she did not want to travel back to Brooklyn alone. She said

she slept in the living room and defendant slept in the bedroom.

      T.W. was awakened the following morning when she heard someone

knocking at the door. She could hear someone banging and cursing. She

explained that defendant opened the door and plaintiff charged into the

apartment. T.W. thought plaintiff was trying to attack her. She said defendant

managed to get plaintiff out of the apartment and then closed the door. She

recalled defendant putting plaintiff's personal belongings in a bin, and she heard

plaintiff cursing and screaming until she got to her car.

      The municipal court judge placed his decision on the record. The judge

found that the State had not proven beyond a reasonable doubt that defendant

committed a simple assault, in violation of N.J.S.A. 2C:12-1(a)(1). The judge

found that defendant's version of the incident was to some extent corroborated

by T.W.'s testimony, and there was no corroboration of plaintiff's version of the

incident.   The judge stated that plaintiff had no right to be in defendant's

apartment, and defendant had the right to use reasonable force in defending

himself and his guest.

       The judge also found there was insufficient evidence to find defendant

guilty of the lesser-included offense of harassment under N.J.S.A. 2C:33-4. The


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                                        9
judge noted that the statute requires proof that the defendant acted with a

purpose to harass. The judge stated that defendant acted to remove an uninvited

guest from his apartment, and he did not act with a purpose to harass plaintiff.

       Thereafter, defendant filed a motion in the Family Part to vacate the FRO.

On March 31, 2016, another Family Part judge heard oral argument on the

application and placed his decision on the record. 2 The judge reviewed the

relevant factors for dissolving a FRO, which are identified in Carfagno v.

Carfagno, 288 N.J. Super. 424, 435 (Ch. Div. 1995), and found that defendant

had not shown good cause to dissolve the order.

       The judge also found that defendant had not shown he was entitled to relief

from the order under Rule 4:50-1(a) or (f). The judge entered an order denying

the motion and this appeal followed.        The judge later filed a letter dated

November 8, 2017, amplifying the reasons for his order.

                                            III.

       On appeal, defendant argues: (1) the FRO should be dissolved because the

municipal court judge dismissed the underlying criminal charges of assault and

harassment; and (2) the FRO should be vacated pursuant to Carfagno or Rule

4:50-1(a) or (f). Having thoroughly considered these arguments in light of the


2
    We note that the judge who issued the FRO had retired.
                                                                          A-3989-16T2
                                       10
record and the applicable law, we conclude defendant's arguments are without

merit.

         We note initially that the trial court's findings of fact are binding on appeal

"if supported by adequate, substantial, credible evidence." Cesare v. Cesare,

154 N.J. 394, 412 (1998) (citing Rova Farms Resort, Inc. v. Invs. Ins. Co., 65

N.J. 474, 484 (1974)). An appellate court may not set aside a trial court's factual

findings unless convinced the findings "are so manifestly unsupported by or

inconsistent with the competent, relevant and reasonably credible evidence as to

offend the interests of justice." Ibid. (quoting Rova Farms, 65 N.J. at 484).

         Moreover, an appellate court should defer to fact-finding by the Family

Part because of that court's "special expertise in the field of domestic relations."

Ibid. (citing Brennan v. Orban, 145 N.J. 282, 300-01 (1996)). However, we owe

no deference to the trial court's ruling on an issue of law, which we review de

novo. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995).

         To secure a FRO under the PDVA, the plaintiff must establish that the

defendant committed a predicate act of domestic violence, as defined in N.J.S.A.

2C:25-19(a), and that a restraining order is required to protect the victim from

further acts of domestic violence. Silver v. Silver, 387 N.J. Super. 112, 125-27


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                                           11
(App. Div. 2006). The predicate acts in N.J.S.A. 2C:25-19(a) include simple

assault under N.J.S.A. 2C:12-1, and harassment under N.J.S.A. 2C:33-4. The

PDVA allows the trial court to dissolve or modify a FRO upon good cause

shown. N.J.S.A. 2C:25-29(d).

      Here, defendant argues good cause exists because after a trial, the

municipal court judge found that the State had not proven beyond a reasonable

doubt that on August 9, 2014, defendant committed the criminal charge of

assault or the lesser-included offense of harassment. However, as the Family

Part judge recognized in denying defendant's motion to dissolve the FRO, the

standard of proof for a criminal charge is proof beyond a reasonable doubt,

whereas under the PDVA, the standard of proof for obtaining a FRO is

preponderance of the evidence. N.J.S.A. 2C:25-29(a). The Family Part judge

correctly determined it was not bound by the findings of the municipal court

judge in the criminal matter.

      Indeed, in State v. Brown, 394 N.J. Super. 492, 504 (App. Div. 2007), we

observed that the purposes of an action under the PDVA and a criminal action

are distinctly different. We noted that an action in the Family Part under the

PDVA is intended "to protect an individual victim," whereas in a criminal case,

"the State prosecutes a defendant on behalf of the public interest." Ibid.


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                                      12
      The record also supports the Family court's finding that defendant failed

to show good cause to dissolve the FRO. In Carfagno, the Chancery Division

identified factors a court should consider in making this determination:

            (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 the defendant has been
            convicted of contempt for violating the order; (5)
            whether the defendant has 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.]

      Here, the Family Part judge found that: (1) plaintiff had not affirmatively

consented to the dissolution of the FRO and did not attend the hearing; (2) it

was unclear if plaintiff still fears defendant; (3) the parties had no ongoing

relationship; (4) defendant has no prior violations of a FRO and no contempt

citations; (5) drug or alcohol abuse is not a factor; (6) there is no evidence that

defendant has been involved in violent acts with other persons; (7) defendant

engaged in counseling but never completed the counseling program required by


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                                       13
the FRO; (8) defendant is fifty-four-years old and seemed to be in good health;

and (9) there is no evidence that a restraining order has been entered against

defendant in any other jurisdiction.

      The judge noted that he relied heavily on defendant's failure to complete

the counseling program ordered when the FRO was entered. The judge also

noted that defendant had not argued that the FRO adversely affected his job, and

that defendant was not seeking to dissolve the FRO for a background check, new

employment, or for any other specific reason.

      The judge found that defendant was seeking to dissolve the FRO because

he had been found not guilty of assault and harassment in the related criminal

action, which was not a sufficient basis for dissolution of the order. We are

convinced there is sufficient credible evidence in the record to support the

judge's findings.

      The judge also found that defendant had not established a basis for relief

from the FRO under Rule 4:50-1. The rule permits a court to grant a party relief

from a final judgment or order for the following reasons:

            (a) mistake, inadvertence, surprise, or excusable
            neglect; (b) newly discovered evidence which would
            probably alter the judgment or order and which by due
            diligence could not have been discovered in time to
            move for a new trial under [Rule] 4:49; (c) fraud
            (whether heretofore denominated intrinsic or extrinsic),

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                                       14
            misrepresentation, or other misconduct of an adverse
            party; (d) the judgment or order is void; (e) the
            judgment or order has been satisfied, released or
            discharged, or a prior judgment or order upon which it
            is based has been reversed or otherwise vacated, or it is
            no longer equitable that the judgment or order should
            have prospective application; or (f) any other reason
            justifying relief from the operation of the judgment or
            order.

            [R. 4:50-1.]

      A motion for relief under subsections (a), (b), and (c) must be made within

a year after the judgment or order. R. 4:50-2. Relief under the other subsections

of Rule 4:50-1 must "be made within a reasonable time." Ibid.

      On appeal, defendant argues that he sought relief under subsection (f) of

Rule 4:50-1 within a reasonable time after the FRO was entered. He also argues

that the trial court erred by denying relief under Rule 4:50-1(a) or (f). Again,

we disagree.

      A trial court's decision under Rule 4:50-1 should be given "substantial

deference," and will not be reversed unless shown to be "a clear abuse of

discretion." US Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467 (2012) (citing

DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 261 (2009); Hous. Auth. of

Morristown v. Little, 135 N.J. 274, 283 (1994)). Furthermore, relief under

subsection (f) is available "only when 'truly exceptional circumstances are


                                                                         A-3989-16T2
                                      15
present.'" Guillaume, 209 N.J. at 484 (quoting Little, 135 N.J. at 286). "The

rule is limited to 'situations in which, were it not applied, a grave injustice would

occur.'" Ibid. (quoting Little, 135 N.J. at 289).

      The Family court did not err in finding defendant was not entitled to relief

under Rule 4:50-1(a). The FRO was entered on August 19, 2014, and defendant

did not seek relief from the order within a year. The Family court also did not

err in finding that defendant failed to establish grounds for relief under Rule

4:50-1(f), even if we assume that defendant submitted his application for relief

from the FRO within a reasonable time after that order was entered. As the

judge explained, defendant did not show that relief from the order was due to

"truly exceptional circumstances" or that a "grave injustice would occur" if relief

is denied. See ibid. (quoting Little, 135 N.J. at 284, 289). The record supports

that finding.

      Affirmed.




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