RECORD IMPOUNDED

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4605-18T1

O.S.N.,

Plaintiff-Respondent,

v.

C.M.N.,

Defendant-Appellant.

__________________________

Submitted September 15, 2020 – Decided

Before Judges Mawla and Natali.

On appeal from the Superior Court of New Jersey, 

Chancery Division, Family Part, Bergen County, 

Docket No. FV-02-2163-17. 

C.M.N., appellant pro se.

Inkyung Lee, attorney for respondent.

PER CURIAM

Defendant appeals from a May 10, 2019 Family Part order that denied his 

motion to dissolve a final restraining order (FRO) entered pursuant to the 

NOT FOR PUBLICATION WITHOUT THE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.

September 22, 2020
2

A-4605-18T1

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 June 

22, 2017, O.S.N.1filed a domestic violence complaint pursuant to the PDVA 

and sought a temporary restraining order (TRO) based on defendant C.M.N.'s

prior, unreported acts of domestic violence and an incident the previous night in 

which defendant, "struck her on the head [three times] with his hand." The court 

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

The court heard the matter on June 29, 2017. Defendant had notice of the 

proceeding but did not appear. 

Plaintiff testified that she and defendant were previously married and 

divorced in September 2016. The parties reconciled sometime thereafter and 

began cohabitating occasionally in the former marital residence in Edgewater. 

On June 21, 2017, defendant came to the residence and accused plaintiff 

of being unfaithful and "hit [the] left side of [her] face." She testified that she 

was "really scared," "scream[ed] and yell[ed] [for] someone to help [her]," and

attempted to flee the house. Plaintiff also stated that she had filed a previous 

1 We use the parties' initials to protect O.S.N.'s privacy. R. 1:38-3(d)(10).
3

A-4605-18T1

domestic violence complaint against defendant as a result of prior assaults and 

that she remains "afraid of him a lot." 

Family Part Judge Christine A. Farrington found that plaintiff testified 

credibly, that defendant had committed a simple assault upon her, and that 

plaintiff required a FRO because she was in fear of defendant. The judge also 

noted that "from a distance of approximately [fifteen] feet . . . I can observe deep 

black and blue marks to the entire left side of plaintiff's face." Judge Farrington

entered the FRO, which required, among other things, that defendant attend a 

batterers' intervention program. 

Defendant was also charged in the Edgewater municipal court with simple 

assault, N.J.S.A. 2C:12-1(a)(1), a disorderly persons offense, and terroristic 

threats, N.J.S.A. 2C:12-3(a), related to the June 21, 2017 incident. According 

to the Notice of Disposition, the municipal court found defendant not guilty of 

those charges on October 23, 2017.2 

2 Plaintiff attributes the favorable municipal disposition to her statement to the 

prosecutor that "she did not want to send the [d]efendant to prison because of 

the [parties'] . . . children." The record, however, does not contain a transcript 

of the municipal court proceeding and we are therefore unable to determine the 

proofs presented by the State, or the basis for the court's decision. 
4

A-4605-18T1

Nearly a year and a half later, on March 7, 2019, defendant filed a motion 

in the Family Part to vacate the FRO. Family Part Judge Carol Novey Catuogno

heard oral argument on the application and placed her decision on the record. 3 

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 FRO under Rules 4:49-1, 4:49-2, or 4:50-1. The judge entered an order 

denying the motion and this appeal followed.

II.

As best we can discern, on appeal defendant argues that the: (1) FRO 

should be dissolved because it was entered by default without proper service; 

(2) TRO and FRO were erroneously granted as plaintiff testified falsely and 

inconsistently at the FRO hearing; and (3) court failed to consider exculpatory 

3

Judge Farrington, who presided over the FRO hearing, was assigned to the 

Civil Division at the time defendant filed his request to dissolve the FRO. 

Accordingly, Judge Catuogno handled the application and appropriately 

reviewed the record including the transcript of the prior proceeding. See

Kanaszka v. Kunen, 313 N.J. Super 600, 606-07 (App. Div. 1998) (holding that 

a judge who did not issue the final restraining order may nevertheless rule upon 

a motion to dissolve it so long as the judge reviewed the "complete record," 

including at a minimum, "all pleadings and orders, the court file, and a complete 

transcript of the final restraining order hearing"). 
5

A-4605-18T1

evidence, disregarded that he was acquitted in the municipal court of simple 

assault, and "refused [his] right to speak." Having thoroughly considered these 

arguments in light of the 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). 
6

A-4605-18T1

III.

We reject plaintiff's initial argument that the FRO should be vacated 

because he was improperly served as unsupported by the record. We also reject 

his challenge to the court's factual findings as both procedurally defective under 

Rules 4:49-1, 4:49-2 and 4:50-1, and substantively without merit. 

As to service of the TRO, defendant does not dispute that while he was 

incarcerated on the municipal charges, he was personally served with the TRO 

on June 26, 2017, which clearly indicated that the return date for the FRO 

hearing was scheduled for June 29, 2017. Defendant made no attempt to contact 

the court to seek an adjournment or reschedule the FRO hearing and the court 

appropriately proceeded in his absence. Defendant claims on appeal that his 

poor eyesight prevented him from noting the date for the hearing. We are 

satisfied from our review of the record that the TRO was properly served, and 

defendant had sufficient time and the ability to read the notice so that he could 

appear at the FRO hearing or submit a timely adjournment request to the court. 

Instead, as noted, defendant waited over a year to seek relief from the 

FRO. As the court correctly recognized, although a motion for new trial "may 

be granted to all or any of the parties and as to all or part of the issues on motion 

made to the trial judge," Rule 4:49-1(a), any such application must be served 
7

A-4605-18T1

"not later than 20 days after the court's conclusions are announced in nonjury 

actions." R. 4:49-1(b). Similarly, a motion to alter or amend an order "shall be 

served not later than 20 days after service of the judgment or order upon all 

parties by the part obtaining it." R. 4:49-2. Here, defendant filed his application

on March 7, 2019, one year and nine months after the issuance of the FRO. We 

agree with the judge that defendant was procedurally barred from relief under 

Rule 4:49-1 and Rule 4:49-2 for failure to file his application within the 

appropriate time frame. 

Defendant was also procedurally barred from seeking relief under Rule

4:50-1. That 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), 

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.
8

A-4605-18T1

[R. 4:50-1.] 

A motion for relief under Rule 4:50-1, however, must be made within a 

reasonable time and if based on the grounds detailed under subsections (a), (b), 

and (c), must also be made within a year after the judgment or order. R. 4:50-

2. 

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." U.S. 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)). Further, 

relief under subsection (f) is available "only when 'truly exceptional 

circumstances are 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). 

Judge Catuogno did not err in finding defendant was not entitled to relief 

under Rule 4:50-1(a), (b), and (c). Again, the FRO was entered on June 29, 

2017, and defendant did not seek relief within a year. For the same reason, the 

judge also did not err in concluding that defendant's one year and nine-month 

delay in filing his motion after he was made aware of the FRO was not 

reasonable under Rule 4:50-1(d), (e), and (f). Lee v. W.S. Steel Warehousing, 
9

A-4605-18T1

205 N.J. Super. 153, 156 (App. Div. 1985) (noting that a determination of 

reasonable time is dependent on "the totality of the circumstances"); Palko v. 

Palko, 73 N.J. 395, 398 (1977); ("A significant element in the timeliness of 

plaintiff's motion, noting the strictures of the rule, would consist of the date 

when plaintiff first discovered the facts underlying her application . . . ."); see

also Pressler & Verniero, Current N.J. Court Rules, cmt. 3 on R. 4:50-2 (2020). 

Even if we were to assume that defendant submitted his application for 

relief from the FRO within a reasonable time, defendant failed to establish that 

relief was warranted due to "truly exceptional circumstances" or that a "grave 

injustice would occur" if relief was denied. Little, 135 N.J. at 289. Defendant 

was properly served and had notice of the FRO. As Judge Farrington found, 

plaintiff testified credibly that defendant assaulted her, and she remained 

fearful of him. Finally, Judge Catuogno noted "there's nothing that voids [the 

FRO] by operation of law, [subsection (e)] is not applicable in a final 

restraining order, [and there is] no other reason justifying relief from the 

operation of the judgment or order." The record supports those findings. 

IV.

The court also correctly rejected defendant's challenges to the factual 

findings supporting the FRO. To secure a FRO under the PDVA, the plaintiff 
10 A-4605-18T1

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 (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); Carfagno, 288 

N.J. Super. at 434.

Defendant initially claims that the event that led to the issuance of the 

FRO was based on "fraud or misrepresentation" perpetuated by the plaintiff and 

that Judge Catuogno wrongfully disregarded a photograph that was "decisive 

proof" of his claim. We disagree. The record supports Judge Catuogno's finding 

that defendant failed to show good cause to dissolve the FRO under the standard 

set forth in Carfagno. 

In Carfagno, the Chancery Division delineated eleven factors for courts to 

consider in evaluating whether "good cause" to vacate the restraining order has 

been demonstrated:

(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 
11 A-4605-18T1

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. 

[Id. at 435.] 

Here, the court conscientiously considered these factors and found that: 

(1) plaintiff had not consented to lift the restraining order; (2) plaintiff feared 

defendant; (3) the parties had no ongoing relationship; (4) defendant had no 

prior violations of the FRO and no contempt citations; (5) defendant did not 

present any evidence that he had abstained from either drugs or alcohol; (6) there 

was no evidence that defendant had been involved in violent acts with other 

persons; (7) defendant did not attend his court mandated batterers' intervention 

program; (8) defendant was at an advanced age of eighty-two years; (9) plaintiff 

acted in good faith; (10) there were no other restraining orders in effect; and 

(11) no other factor had been deemed relevant by the court.

In denying defendant's application, the court relied on the factual findings 

of assault as made by Judge Farrington, including the observed physical injuries, 
12 A-4605-18T1

plaintiff's lack of consent to lifting the restraints, defendant's failure to engage 

in the court ordered batterers' program and plaintiff's continued fear of 

defendant. As these findings are amply supported by the record, we are satisfied 

that the court did not abuse its discretion in denying defendant's application. 

Defendant also seemingly argues that good cause exists because the 

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

doubt that defendant committed the criminal charge of assault. However, as 

Judge Catuogno recognized, 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 

court 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. 
13 A-4605-18T1

To the extent we have not addressed any of defendant's remaining 

arguments it is because we conclude they are without sufficient merit to warrant 

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.