No transcript? No problem!

You want to dissolve your Final Restraining Order (hereinafter “FRO”). It’s been YEARS since it’s been entered. In fact, you even communicate with the other part and you are confident that he/she no longer “fears” you as they might have once had. You are ready to file a motion to dissolve the FRO, when you encounter a problem: you are unable to obtain a copy of your transcript from the FRO Hearing. That’s an issue since the Court requires a "complete record of the hearing" before dissolving or modifying any final order. And if the motion judge did not enter the FRO, the Court requires, at a minimum, all pleadings and orders, the court file, and a complete transcript of the final restraining order hearing. Kanaszka v. Kunen, 313 N.J. Super. 600 (App. Div. 1998).

Nevertheless, you’re in luck because of a case called G.M. v. C.V.

Back in 2004, Plaintiff (Richard) obtained a FRO against his soon-to-be (now ex-wife) Barbara. Twelve (12) years later, Barbara sought to dissolve the FRO based on the fact that her and Richard communicated regularly, he even made sexual advances towards her, they entered into real estate ventures together, and he attended her 40th birthday party, which was held at his restaurant. Despite the foregoing, Richard strongly objected to the dismissal of the FRO and filed a cross-motion for counsel fees. Unfortunately, Barbara’s application to dissolve the FRO did not include the transcript of the 2004 FRO Hearing. By way of explanation, Barbara attached a copy of an e-mail from the Morris County Superior Court Operations Division that stated, "neither tape is working, so there is nothing for you to listen to." A later e-mail reported that "it was discovered that one of the tapes was blank.” A May 4, 2016 certification from a tape transcript processing employee in the Morris County vicinage stated that the audio tapes of the 2004 FRO hearing were blank.

On May 6, 2016, the Family Part denied Barbara’s application to dissolve the FRO because it did not include a copy of the 2004 FRO hearing transcript. Barbara filed a Motion for Reconsideration, which was denied based upon the fact that without the transcript, it had "almost no record on which to rely" in analyzing whether Richard had an objective fear of Barbara. The court stated that the FRO did not "state the underlying predicate act" and certifications from the parties did not "illuminate details of the underlying incident of domestic violence." This was entirely unfair as the reason that Barbara did not have the transcript was through no fault of her own, yet she was still being penalized for not being able to obtain same.

Barbra appealed the trial court’s decision and on appeal, Barbara contended the court erred by not allowing the 2004 FRO record to be reconstructed so that her application to dissolve the FRO could be heard. The Appellate Division agreed with Barbara and reversed the trial court’s decision and concluded that, under these circumstances, the fundamental fairness and due process of law require the Family Part to confer with the parties and reconstruct the record of the FRO hearing. Once the record of the FRO proceeding has been reconstructed, the court must then determine whether the applicant has presented sufficient evidence to establish good cause to modify or dissolve the FRO pursuant to N.J.S.A. 2C:25-29(d).

In sum, don’t lose hope if you are not able to obtain a copy of the transcript like Barbara was not able to. Your attorney must simply reconstruct the record of the FRO hearing. Call Ziegler, Zemsky & Resnick today if you wish to file a motion to dissolve your FRO.

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