DRAFT — Notice of motion to dissolve or modify the restraining order held by Frank Patrick D'Antonio against Marlene Rodriguez

DRAFT. NOT FILED. Filed in the matter already pending: Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, docket FV-02-[from the served papers]-26. If the order is still temporary, this material is instead the defense presented at the final-restraining-order hearing.

SUPERIOR COURT OF NEW JERSEY, CHANCERY DIVISION, FAMILY PART, BERGEN COUNTY

FRANK PATRICK D'ANTONIO, Plaintiff, v. MARLENE RODRIGUEZ, Defendant.

Docket No. FV-02-[ ]-26

NOTICE OF MOTION TO DISSOLVE THE FINAL RESTRAINING ORDER (N.J.S.A. 2C:25-29(d)) OR, ALTERNATIVELY, TO MODIFY IT

TO: Plaintiff [and counsel of record]

PLEASE TAKE NOTICE that on [date], Defendant Marlene Rodriguez, through counsel, will move before the Family Part, Bergen County Justice Center, 10 Main Street, Hackensack, for an order dissolving the final restraining order entered on [date], or in the alternative modifying it, on the grounds set out in the accompanying certification and brief.

Grounds (Carfagno v. Carfagno, 288 N.J. Super. 424 (Ch. Div. 1995)):

  1. Plaintiff does not fear Defendant. Between May and July 2026 Plaintiff himself repeatedly telephoned Defendant, left her voice messages demanding sexual acts (Exhibit B) and threatening her with jail (Exhibit A), and sent her text and WhatsApp messages (Exhibits D, E). A plaintiff who seeks out the defendant for sex, and uses the order as a lever, has no objective fear of her.
  2. Changed circumstances and good cause. The order has been turned from a shield into an instrument of harassment and intimidation; the conduct it was meant to prevent, if any, is not occurring, while the Plaintiff's own conduct is the subject of criminal complaints in two states.
  3. Defendant's compliance and good faith. Defendant has not contacted Plaintiff and has not been charged with contempt. [Confirm from Ms. Rodriguez and her side of the record.]
  4. Nature of the current relationship. None, by Defendant's choice; the only contact is initiated by Plaintiff.
  5. Other factors: no contempt convictions; Defendant has no history of violence; dissolution would end the mechanism by which Plaintiff threatens her.

Defendant relies on the certification of Marlene Rodriguez, the recordings and transcripts (Exhibits A and B), the voicemail records (Exhibit D), the message record (Exhibit E), and the brief submitted herewith. Oral argument is requested.

[Proposed form of order attached.]

[Local counsel of record], for Defendant Nathan A. White, Esq., pro hac vice admission pending

Note to counsel: Rule 5:7A and the Domestic Violence Procedures Manual govern; a motion to dissolve by the defendant requires a prima facie showing of changed circumstances before the court orders a plenary hearing (Kanaszka v. Kunen, 313 N.J. Super. 600 (App. Div. 1998)). Exhibits A and B make that showing on their own.