NJ Family Legal Blog : New Jersey Divorce and Family Lawyer & Attorney : Fox Rothschild Law Firm : Domestic Violence, Prenuptial Agreements, Child Custody

Because domestic violence is so serious, it is an affront to the system and real victims when it is abused.  A few quotes from Appellate cases really get to this point. 

In the Peranio case,  Judge, now Justice Long criticized application of the domestic violence statute to a minor disagreement when she stated:

Although it can safely be observed that defendant’s conduct was no model, application of the domestic violence law to it diminishes the suffering of true victims of domestic violence and misused the legislative vehicle which was developed to protect them. It also had a secondary negative effect: the potential for unfair advantage to a matrimonial litigant.

Justice Long also quoted from the Appellate Division opinion in Murray, as follows:

We are concerned, too, with the serious policy implications of permitting allegations of this nature to be branded as domestic violence and used by either spouse to secure rulings on critical issues such as support, exclusion from marital residence and property disposition, particularly when aware that a matrimonial action is pending or about to begin.

Justice Long then ultimately concluded:

While we are sympathetic with plaintiff’s desire to shield her children from the bickering which took place between her and defendant during his visits (this was plainly one of the factors which fueled the filing of the domestic violence complaint), the fact of the matter is that the dissolution of a marriage is rarely a happy event. All parties suffer and even the most rational are hard pressed to avoid any emotional encounters. Our hope, like plaintiff’s, is that all children of divorce can be spared arguments and recriminations. But this needs to come from the good intentions of their parents and not from the misapplication of the domestic violence law, which law was intended to address matters of consequence, not ordinary domestic contretemps such as this.

At the end of the day, the domestic violence statute is an important and necessary tool to protect victims of domestic violence.  That said, it should be real victims and not maliciously motivated litigants seeking to get a leg up in their divorce or custody proceedings.

In Jutchenko v. Jutchenko, 283 N.J. Super. 17 (App. Div. 1995), a reported (precedential) decision from the Appellate Division, the Appellate Division found that where parties had lived in different residences for 20 years and the alleged victim was not in a "more susceptible position for abusive and controlling behavior" based on their relationship, the Act did not apply.  In so holding, the Appellate Division noted that the Act is directed at "violence that occurs in a family or family-like setting."

Relatedly, the Act also covers any person subjected to domestic violence by a person with whom the victim has had a "dating relationship."  Similarly to "household member" the term "dating relationship" has been broadly interpreted by courts to effectively protect the victim within the confines of the Act.  Factors established by one court to determine whether a dating relationship exists include:

(1) Was there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization?

(2) How long did the alleged dating activities continue prior to the acts of domestic violence alleged?

(3) What were the nature and frequency of the parties' interactions?

(4) What were the parties' ongoing expectations with respect to the relationship, either individually or jointly?

(5) Did the parties demonstrate an affirmation of their relationship before others by statement or conduct?

(6) Are there any other reasons unique to the case that support or detract from a finding that a "dating relationship" exists?

These considerations do not necessarily provide a definitive conclusion to whether a dating relationship exists, but they may certainly be relevant to such a finding.  This conclusion, however, may prove inconsistent with that found by the Appellate Division in Jutchenko.  For instance, the Appellate Division recently affirmed a trial court's finding in the unreported (not precedential) decision, Jensen v. Baratta, that a dating relationship existed primarily within the confines of the 6th factor above - unique reasons.  There, the parties had met at a five-day real estate course - 5 years prior to the incident leading to the temporary restraining order.  During the course, the parties were allegedly attracted to each other and had several lunches together.  There was no sexual relationship between them and most contact between them was in the presence of others.  It was several years later with no contact between the parties that the police found the defendant near the plaintiff's home, with a gun, $10,000 in cash and a notebook with the phrase "real estate girl" written on a page.  The police also determined that the defendant had entered the plaintiff's backyard.  The Appellate Division affirmed the finding of a dating relationship under these fatal attraction-type circumstances, agreeing that the Act was designed to protect even those in "somewhat of a dating relationship where one person becomes obsessed with the other.

Notably, while Jutchenko and Jensen provide for logically opposite results, Jutchenko is a reported (precedential) opinion from the Appellate Division while Jensen is not.

 In obtaining the TRO, the husband also alleged at the time that the wife repeatedly showed up at his residence without notice or invitation, banged on the door if no one answered and would even enter the residence when the husband was not home, using obscenities towards his second wife about him. Regarding the wife’s alcoholism, he added that on one occasion, the wife drove drunk with their son in the car where the son was forced to grab the wheel to avoid an accident. 

The parties executed a Consent Order at the final hearing, agreeing to restrain each party from entering the residence of the other; restraining communications between them unless they dealt with the children and, in such cases, communications were to be made in writing unless in case of a life or death emergency; transferring custody of the children to the husband; providing the wife with supervised visitation for a 30-day period following the date of the Order; and requiring the wife to attend and demonstrate compliance with an after-work alcoholic rehabilitation program and counseling during the 30-day period. Should she fully comply, shared parenting time pursuant to the PSA would resume. While the parties never executed the Consent Order, they both testified at the subsequent hearing forming the basis of the appeal that they believed they were bound by its terms.    

One month later, the wife submitted proof to the husband of her completion of the program and counseling, but the husband refused to turn the children over to the wife, asserting that the wife needed to provide breathalyzer results and a urine analysis demonstrating her non-consumption of alcohol. The police intervened at the wife’s call and the husband agreed to return the children to her the following day after he took them to a company holiday party. During the party, however, the wife repeatedly called the parties’ son to find out when the children would be brought to her and after the party she texted the husband with the same question. Shortly thereafter, the children were brought to her, but, according to the wife, the son was very upset because the husband was going to be divorced from his second wife.

Apparently this information prompted the wife to call the husband four times that night within a few minutes of each other, but none were answered. The wife then called the husband’s second wife twice shortly thereafter, to which the husband responded with a text message telling her to stop calling. The mother soon after responded that she needed to talk to him about their son, to which the husband responded by calling the son directly to see that everything was okay. The husband then texted the wife to tell her to stop calling, that she had ruined the work party by calling the son repeatedly and that he was not allowed to call. The mother then responded that they needed to talk about their son and that she was coming over to his place, to which the father responded not to come over and not to call. The wife again replied that she was not crazy and that they needed to talk about their son, subsequently texting again that it was about the son.

The wife went to the husband’s house uninvited and began banging on the door and loudly demanding to speak with the husband when she was not allowed in. Approximately 15 minutes later, she was allowed in, but the parties began shouting at each other. The husband’s second wife commented that the wife was acting like white trash, to which the wife responded by slapping the second wife in the face. The wife then left and the husband’s second wife called the police. A new TRO was entered against the wife, but no change in custody was ordered prior to the final hearing. Prior to the final hearing, however, the son found a wine bottle and claimed to have found a glass of wine in the mother’s office. As a result, the son decided to take his sister and went to live with the husband out of concerns for their own safety. The mother, however, denied alcohol abuse.

At the final hearing on this second TRO, the trial judge determined that the wife had engaged in harassment by a preponderance of the evidence. A final restraining order was entered against her, the father was awarded residential custody of the children, joint legal custody was left in place pursuant to the PSA, and the wife was permitted supervised visitation and telephone contact with the children. In so holding, the judge based the conclusion on the entire historical pattern of behavior, including late night telephone calls, coming to the husband’s residence uninvited and also a finding that the wife assaulted the second wife.  While the judge found that the wife was motivated out of concern for the son, her conduct was done to harass or annoy the husband. 

In affirming the trial court’s decision, the Appellate Division set forth the PDVA’s definition of harassment as:  

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or serious annoy such other person.

The trial judge did not specify which section the wife violated, but the Appellate Division found, based on the trial opinion, that section (a) was at issue, which requires proof that: (1) defendant made or caused to be made a communication; (2) defendant's purpose in making or causing the communication to be made was to harass another person; and (3) the communication was in one of the specified manners or any other manner similarly likely to cause annoyance or alarm to its intended recipient. The Appellate Division quoted from the New Jersey Supreme Court’s opinion in State v. Hoffman, 149 N.J. 564 (1997), in adding that “annoyance” means to “disturb, irritate, or bother” within the realm of the statute, that a “purpose to harass may be inferred from the evidence presented,” and that the determination may be based on common sense and experience.

Analyzing the present facts, the Appellate Division found sufficient evidence presented to support the trial judge’s findings that the wife acted with a “purpose to harass.” In particular, the Appellate Division noted that, while the mother may initially have been motivated out of concern for the son, by the time she reached the husband’s home (if not sooner) the motivation was transformed while the son had already calmed down. The Court added that the wife’s means to inform the father of the son’s sentiment could be deemed intentionally harassing, especially in light of the late hours and offensive language used. Moreover, the wife’s recent history of conduct cemented the finding, but concluded that the wife’s drinking did not impact the decision based on her claim that she was sober. While the Appellate Division affirmed a finding of harassment under section (a) of the harassment statute, it also found that sufficient evidence existed for such a finding under section (c) as well.

The Appellate Division also rejected the wife’s argument that the trial court’s Order should be vacated because the judge, after finding harassment, did not also find that a restraining order was required to protect the husband. Quoting from its opinion in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006), the Court stated that the guiding standard as to “whether a restraining order is necessary, upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29a(1) to -29a(6), to protect the victim from an immediate danger or to prevent further abuse. N.J.S.A. 2C:25-29a requires that a trial judge consider, in pertinent part: 

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse; and

(2) The existence of immediate danger to person or property.

The Appellate Division noted that, while the trial judge did not specifically address these considerations, the judge’s overall conclusion that the wife’s behavior was harmfully impulsive to those she cared about was sufficient under the Silver standard.

Finally, the Appellate Division rejected the wife’s argument that the husband was tactically using the PDVA against her on the pending issue of child custody in a corresponding matrimonial matter, finding no evidence of same and adding that the son voluntarily left the mother’s custody prior to the final hearing and refused to return to her residence on the date of the hearing. Further, since the custody order was entered without prejudice, the wife could file an application in the matrimonial matter to restore the prior custody arrangement. 

kebea unknowingly activated the software on her computer by opening an attachment to an email David sent to her.  He disguised his true intent by sending the email as a poem.  Later that week, David learned of an email from Kebea's ex-boyfriend to Kebea.  David confronted Kebea about communicating with the ex-boyfriend and she became "startled and alarmed" as a result.  It was not until later that night that she discovered what David had done to her email.  David ultimately confessed to Kebea, who threatened to have him arrested.  David then agreed to try to remove the spy program from her computer, which occurred soon thereafter. 

The following day, Kebea obtained a TRO against David based on harassment, criminal trespass and criminal mischief, all stemming from his spying on her computer and emails.  David also obtained a TRO against Kebea based on her own conduct against him.  The trial court entered Final Restraining Orders against each party.  David then filed a notice of appeal.

The Appellate Division ultimately remanded the matter to the trial court to clarify its conclusions and statutory basis for finding a violation of the harassment statute based on David's spying misconduct.  As part of its analysis, the Appellate Division quoted the harassment statute, N.J.S.A. 2C:33-4 in relevant part:

[A] person commits a petty disorderly persons offense if, with purpose to harass another, he:

a.  Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;

b.  Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c.  Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

Examining David's misconduct, the Appellate Division found difficulty in categorizing it within subsection (a) or (c) of the harassment definition.  As only one incident was at issue, however, the Appellate Division eliminated subsection (c) from consideration.  Kebea relied in part on the New Jersey Supreme Court's decision in H.E.S. v. J.C.S., 175 N.J. 309 (2003).  There, the Supreme Court concluded that the husband's stealth electronic surveillance of the wife's bedroom, deemed to have occurred over several weeks/months, could constitute a violation of the harassment statute and stalking statute.  The Court there added, however, that such a violation could only be found in conjunction with the husband's repeated conduct of making the wife aware that he was spying on her.  Specifically, he expressed knowledge to her of her telephone calls, appeared where she would be although she did not expect him to know her plans, and she also suspected that he was stealing his papers and checks hidden in her bedroom. 

The Appellate Division in Kebea distinguished H.E.S. by noting that David's conduct was a singular incident, which was quickly revealed to Kebea and ended immediately.  Without rendering a finding, the Appellate Division held that the trial court would have to determine whether David's act violated subsection (c) or if his informing Kebea of what he had done violated subsection (a) - required to be made "anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm."

The trial judge first required both parties to submit to a drug and alcohol testing. When the results came out negative the judge proceeded with the hearing. The judge took testimony from A.R., however would not allow E.B. to cross examine her and when E.B. advised the court he had witnesses, the judge dismissed the statement.

In entering the Final Restraining Order (FRO) the judge stated on the record that E.B.’s own behavior evidences his lack of control and that he had anger and violence problems. In addition to entering the FRO, upon A.R.’s request, the court imposed support obligations upon E.B. without taking any testimony or reviewing any evidence as to either party’s income or A.R.’s financial needs.

On appeal E.B. argued that he was deprived his due process rights because of a lack of meaningful notice of the hearing and an opportunity to obtain counsel; the record didn’t support the decision to issue an FRO; and the judge erroneously imposed support obligations upon him without taking any testimony as to his financial situation.

The Appellate Division agreed with E.B. that he was deprived his right of due process to notice and a meaningful opportunity to defend himself and that the court erroneously imposed financial obligations upon him.

At a minimum, due process requires that a party in a judicial hearing receive ‘notice defining the issues and an adequate opportunity to prepare and respond.” H.E.S. v. J.C.S., 175 NJ 309, 321 (2003). The Prevention of Domestic Violence Act requires that a final hearing be held within ten days of the filing of a TRO. N.J.S.A. 2C:25-29(a). However, “to the extent that compliance with the ten-day provision precludes meaningful notice and an opportunity to defend, the provision must yield to due process requirements.” H.E.S. at 323. Furthermore, the judge imposed significant financial obligations upon defendant without receiving any evidence of either party’s current financial situation. The Appellate Division recognized a need for resolution of the entry of a FRO in a hearing that comports with “[t]he minimum requirements of due process,…notice and the opportunity to be heard.” Doe v. Poritz, 142 NJ 1, 106 (1995).
 

Quoting from the Appellate Division’s opinion in Peranio v. Peranio, 280 N.J. Super. 47, 53 (App. Div. 1995), the Appellate Division commenced its review by noting that the Act’s legislative intent to address “regular serious abuse between spouses.” The Appellate Division then explained that, under the Act, “domestic violence” means “the occurrence of one or more of [fourteen specific criminal] acts inflicted upon a person protected under this act by an adult or an emancipated minor . . . .” N.J.S.A. 2C:25-19(a). The definition was designed to provide spouses subjected to criminal conduct with legal recourse. The Appellate Division also noted that the burden of proof on a party attempting to provide an act of domestic violence is a preponderance of the evidence, which a court determines based on a review of the following non-exhaustive factors:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and parenting time the protection of the victim’s safety; and

(6) The existence of a verifiable order of protection from another jurisdiction.

As harassment was at issue, the Appellate Division then quoted the three separate statutory definitions of such criminal conduct under N.J.S.A. 2C:33-4:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively course language, or any other manner likely to cause annoyance or alarm;

b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or

c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

The situation here dealt with subsection (c) of the harassment statute, so the Appellate Division first analyzed whether the husband had a purpose to harass, and then whether he had engaged in a “course of alarming conduct or repeated acts intended to alarm or seriously annoy” the wife. In conducting its analysis, the Appellate Division noted that the Act was not intended to address incidence of “ordinary domestic contretemps.” In other words, the Act is not meant to protect against the emotionally difficult issues that typically arise between couples during the course of a troubled and dissolving marriage. 

In light of the above, the Appellate Division held that the evidence failed to establish harassment under the Act, but rather the existence of mere domestic contretemps in light of the husband believing that he had discovered direct evidence of the wife’s adultery. In so holding, the Appellate Division disagreed with the trial judge’s findings that harassment existed based on the husband disabling the wife’s motorcycle, taking a garment she was wearing, demanding her car keys and generally expressing anger and frustration with her. The Court also noted how the trial judge made no specific finding that: (1) the husband had engaged in the sort of “course of alarming conduct or of repeatedly committed acts;” (2) his purpose was to seriously annoy her; and (3) any prior history of domestic violence or an immediate danger to the wife.