179 A.3d 413
N.J. Super. Ct. App. Div.2018Background
- In 2004 a Final Restraining Order (FRO) was entered against defendant under the Prevention of Domestic Violence Act based on multiple alleged predicate acts; defendant did not appeal the FRO.
- In March 2016 defendant moved to dissolve the FRO under N.J.S.A. 2C:25-29(d), claiming changed circumstances (plaintiff moved to Florida, cordial contacts, business dealings, and mediation needs).
- Defendant did not supply a transcript of the 2004 FRO hearing; court staff later advised the audio tapes were blank or otherwise unavailable.
- The Family Part denied the dissolution motion (May 6, 2016) and reconsideration (June 10, 2016) as procedurally defective because the statute requires a “complete record” (relying on this court’s Kanaszka decision).
- This appeal challenged the denial, arguing reconstruction of the lost/untranscribable FRO record was required to protect defendant’s due process rights.
- The Appellate Division reversed and remanded, instructing the Family Part to verify unavailability, assess whether defendant made a prima facie showing of changed circumstances under Carfagno factors, and — if appropriate — reconstruct the 2004 hearing record or hold a plenary hearing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether absence of a transcript is a jurisdictional/automatic bar to a dissolution motion | The transcript is required by N.J.S.A. 2C:25-29(d); absence is procedurally fatal (per Kanaszka) | Absolute transcript requirement is inflexible and, if transcript unavailable through no fault of movant, denial without reconstruction denies due process | Court held transcript requirement remains when transcript exists but is not provided; but when transcript truly unavailable through no fault of movant, court must take additional steps (verify unavailability; consider reconstruction or plenary hearing) |
| Whether the court must reconstruct a lost/untranscribable FRO record | Court need not reconstruct; follow Kanaszka and deny without transcript | Where the audio/transcript is lost or corrupted and not movant’s fault, due process may require reconstruction of the record under supervisory procedures | Court required Family Part to verify unavailability and, if movant makes prima facie showing or record insufficient to deny, reconstruct the record consistent with Izaguirre or hold plenary hearing |
| What preliminary burden movant must meet before a plenary hearing | Movant has heavy burden; absence of transcript prevents meaningful review | Movant must be allowed to show prima facie changed circumstances even if transcript unavailable | Movant must make a prima facie showing of changed circumstances (Carfagno factors) before court proceeds to plenary hearing or reconstruction; if not met, no reconstruction required |
| Scope and method for reconstruction of a lost record | Reconstruction risks relitigation and is unreliable | Reconstruction (guided by Rule 2:5-3(f)/Izaguirre) is acceptable where it can provide reasonable assurance of accuracy; can include parties’ sworn testimony or stipulation; judge has discretion on format | Court instructed procedures: verify unavailability, attempt to retrieve (CourtSmart), assess prima facie showing, try stipulation or sworn recital under oath to reconstruct; if infeasible, make specific findings and may proceed to plenary hearing |
Key Cases Cited
- Kanaszka v. Kunen, 313 N.J. Super. 600, 713 A.2d 565 (App. Div.) (statutory “complete record” requirement generally requires a transcript to evaluate dissolution of a FRO)
- Izaguirre v. State, 272 N.J. Super. 51, 639 A.2d 343 (App. Div.) (due process requires court-supervised reconstruction when verbatim record is lost)
- Silver v. Silver, 387 N.J. Super. 112, 903 A.2d 446 (App. Div.) (requirements for entry of a domestic violence restraining order; predicate acts and history of violence considerations)
- Carfagno v. Carfagno, 288 N.J. Super. 424, 672 A.2d 751 (Ch. Div.) (non-exclusive factors to evaluate good cause to dissolve/modify a restraining order)
- Cesare v. Cesare, 154 N.J. 394, 713 A.2d 390 (1998) (family courts’ role and deference; consideration of prior history in domestic relations matters)