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The court then noted the reason for the domestic violence statute and the societal problem of domestic violence, noting:

The Legislature enacted the PDVA in response to the serious societal problem of domestic violence, which persists "as a grave threat to the family, particularly to women and children." State v. Chenique-Puey, 145 N.J. 334, 340 (1996). In crafting the law, the Legislature made clear its intention "'to assure the victims of domestic violence the maximum protection from abuse the law can provide.'" Cesare, supra, 154 N.J. at 399.
(quoting N.J.S.A. 2C:25-18). Our Supreme Court has likewise made clear its belief "that there is no such thing as an act of domestic violence that is not serious." Brennan v. Orban, 145 N.J. 282, 298 (1996).

In enacting the statute, the Legislature determined that there exists "a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence." N.J.S.A. 2C:25-18. This legislative declaration guides our interpretation of the statute generally, and specifically limits our understanding of the statute's presumption that temporary custody is to be awarded to the non-abusive parent. (Emphasis added).

The Appellate Division held that the trial court's determination about the defendant's anger was incorrect, and in fact, that many of the incidents happened in front of the children.  The court noted:

We do not doubt that the trial judge correctly found that "defendant's anger issues are anger issues about one thing only," that being his wife's infidelity. But we think the judge
erred and misperceived the nature and effect of domestic violence in a family when he apparently determined that the level of anger defendant harbored for his wife was isolated and thus did not affect the couple's children. Defendant's anger over the weeks and months following the disclosure, when he burned her clothes and other possessions, did not subside.

Indeed, just the opposite occurred. His attacks on his wife became more frequent and escalated in intensity. The court also clearly credited the testimony that defendant had spoken to the children about the temporary restraining order and that the children, by their comments, displayed an inappropriate awareness of the problems between their parents. Defendant's anger was clearly a force beyond his mastery or control. These facts found by the trial judge, and supported by substantial credible evidence in the record, make clear that the statutory presumption, grounded in the Legislature's judgment that
children exposed to domestic violence are detrimentally affected by the experience, was not rebutted here and that the award of custody to defendant was error.

The Appellate Division then found that there was no statutory authority to remove the victim from the marital home where there was no impediment to her remaining there.

Finally, the court consolidated the domestic violence matter with the pending divorce and instructed the trial court to review the temporary custody arrangements in light of this decision.

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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Practice Group of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys, Eric practices in Fox Rothschild's Roseland, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973)994-7501, or esolotoff@foxrothschild.com.
 

The Appellate Court grounded its decision in the express language of The Prevention of Domestic Violence Act, which provides that a defendant may be restrained:

from entering the residence, property,school, or place of employment of the victim or of other family or household members of the victim and requiring the defendant to stay away from any specified place that is named in the order and is frequented regularly by the victim or other family or household members. N.J.S.A. 2C:25-29b(6) (emphasis added).

In addition to the express language of the Act, the Appellate Court relied upon its prior decision of Finamore v. Aronson, 382 N.J. Super. 514 (App. Div. 2006), wherein it held that a restraining order must “distinctly describe[]” the “specific relief[] necessary to protect the victim”. Id. at 520 (further holding that a provision in a final restraining order that prohibited defendant from attending his children’s extracurricular events would not be enforced where the order failed to provide the factual basis for the provision). The Appellate Court further stressed that, just as in Finamore, the order at issue failed to describe a specific location from which defendant was prohibited and, instead, simply “prohibit[ed] him from wherever his ex-wife may be”. Such language was too broad to satisfy the statutory prerequisite that the order refer to a “specified place” from which defendant was barred.

Due to the inappropriate generality of the order, defendant was left in a position where “he could not, as a matter of law, be found to constitute a knowing violation of an existing domestic violence restraining order." (quoting State v. Finamore, 338 N.J. Super. 130, 132 (App. Div. 2001)). In other words, as the order did not specify those locations from which defendant was prohibited, defendant was unable to determine whether his otherwise innocent act of appearing at a public location would result in a violation of the restraining order if plaintiff also chose to attend the same location without his prior knowledge. As noted by the S.K. Appellate Court, “Defendant should not be compelled to abandon his lawful presence in a public or other location only because his ex-wife also chooses to be present in the same general location…such an order puts defendant at risk of being arrested and charged, as occurred in this case, for otherwise innocent conduct, such as watching his children play soccer, going to their school, or shopping at a grocery store.” Without prior knowledge of his wife’s attendance at the soccer game, defendant could not have “knowingly” violated the restraining order, a state of mind that the State was required to prove in order to establish the disorderly persons contempt of court charge against defendant.

Based on the foregoing, the S.K. Appellate Court held that the prohibition at issue “was not authorize[d]” by the Act since it failed to “describe a specific place from which defendant [was] barred but [instead] generally prohibit[ed] him from wherever his ex-wife may be.

Although holding that the inappropriate broadness of the prohibition violated the Act, the S.K. Appellate Court nonetheless left the door open a crack for the validity of such general prohibitions by focusing on that portion of the Act that grants the Court discretion to expand upon the Act’s terms by ordering “any relief necessary to prevent further abuse". N.J.S.A. 2C:25-29b. Relying on this authority granted by the Act, the S.K. Appellate Court cautioned that there may be instances where “extraordinary circumstances might justify as broad a prohibition as was included in the restraining order in this case.” Unfortunately, the parameters of those “extraordinary circumstances” are not addressed by the S.K. Court.

So, it appears that the question as to the enforceability of these broad prohibitions in domestic violence restraining orders has been answered in the negative. Or has it? S.K. does provide that provisions that generally prohibit a defendant from all locations where plaintiff might be are unenforceable pursuant to the Act. However, S.K. simultaneously provides that there may be “extraordinary circumstances” that justify the expansion of the Act to include the validity of such broad provisions where “necessary to prevent further abuse”. N.J.S.A. 2C:25-29b. The nature of these “extraordinary circumstances” remains unknown to the practitioner. What is known is that, although only slightly cracked, the door has been left partially open for practitioners (and litigants) to define such “extraordinary circumstances”.

This author is left with questions for the S.K. Appellate Division that, for now, go unanswered.

· If, as determined in S.K., such general prohibitions in a restraining order per se preclude a defendant from having the requisite “knowledge” to violate the order, how could there ever be “extraordinary circumstances” that would justify the entry of such an order? Without defendant conceding his “knowledge”, the resulting order could never be violated and would, therefore, be meaningless in terms of protection to plaintiff.

· No matter the “extraordinary circumstances” that might warrant entry of such a broad prohibition, is entry of a final restraining order that contains such a broad prohibition ever fair to defendant who, essentially, must face every day not knowing whether his next innocent step could result in arrest?

Until there is more case law, this author’s questions remain legally unanswered, although fodder for debate.

Providing it's first extremely notable quotation that will likely be cited time and again as these cases become more frequent, the Appellate Division noted: 

We conclude the evidence presented here shows only the convergence of modern technology and the foibles of human judgment.  Our ability to instantaneously and effortlessly send electronic messages has created a gateway unfettered by reflection and open to rash, emotionally driven decisions.  The ease and speed by which we transmit electronic messages has also created a commensurate expectation of an equally instantaneous response from the recipient.

In the case at issue, the parties utilized text messaging as a primary mode of communication about their children.  The Court acknowledged:

[T]exting provided an efficient means of exchanging information as parents, while avoiding the personal contact associated with a telephone call or a face-to-face encounter.  The limited number of words that can be sent at any one time in a text message also minimized the risk for extraneous matters to interfere with the primary dialogue of parenting.  Despite these qualities, texting is merely a tool, a means to an end.  Without reasonable cooperation, texting can lead to the frustration and misuse we witness here.  

Under such rationale, the Appellate Division found that the text messages were not sent with the requisite "purpose to harass" to establish the occurrence of harassment.  To that end, it found notable that the former wife responded only once to 18 messages sent by the husband inquiring as to the daughter's SAT scores and that if she had "simply answered" his question, he would have stopped texting.  Instead, her decision to ignore him was found to have essentially exacerbated the situation.  

The Appellate Division also found it was improper to consider texts by the husband's current wife as evidence of harassment, since there was no evidence that the husband directed his current wife to act on his behalf.  In fact, the former wife even acknowledged that the husband's only purpose in sending the texts was to inquire about the daughter, from whom he had become estranged, and that she was only "annoyed" by the texts after choosing to ignore them.  The Court even found the husband's frustration reasonable, albeit misguided, but, since it was limited to inquiries about the children, it lacked the "purpose to harass."  

Suffice it to say, L.M.F. is a fantastically interesting decision for family lawyers, standing out in this area of the law for a variety of reasons, most notable of which is its foray into the use of electronic communications as a form of harassment.  The intelligent way in which the Appellate Division approaches this issue, especially in the context of divorced spouses trying to co-parent while keeping their emotions in check, provides great guidance for both litigants and legal counsel moving forward. While it may not be as simple, as a result, to establish an incident of harassment in such a case, the decision upon review seems to come at a perfect time in the crossroads of domestic violence law and electronic communications.

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Robert Epstein is a contributor to the New Jersey Family Legal Blog and a member of Fox Rothschild's Family Law Practice Group.  Robert practices throughout  New Jersey in all areas of family law and family law litigation.  You can reach Robert at (973)994-7526, or repstein@foxrothschild.com.

As we have blogged several times before, harassment is defined by New Jersey law as:

Harassment is defined in N.J.S.A. 2C:33-4, which provides in pertinent part:

Except as provided in subsection e., 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.

 A purpose to harass can be inferred from the evidence presented at the final hearing. “Annoyance” under subsection (a) means to “disturb, irritate or bother,” while “serious annoyance” under subsection (c) means to “weary, worry, trouble or offend.”

In J.J., the victim alleged that the defendant, a former boyfriend and parent of her child, drove by her place of employment, backed into a street, waited for her to walk from one building to another, then pulled out and drove by slowly.  The victim testified that she thought nothing of this occurrence until a few days later, at which point she was working at her place of employment when the defendant arrived there to allegedly serve her with "paperwork" claiming that the victim had given out privileged medical information about the defendant's wife.  As she was being informed of the defendant's arrival, she overheard the defendant yelling "in the background and making a scene."  When the victim went to see what was going on, the defendant fled from the scene. 

The following day, the office administrator at the victim's place of employment asked her what had happened, and admonished her to "keep [her] private business private."  The defendant also apparently had an "unpleasant" telephone conversation with the office administrator, leading the administrator to inform the victim that she did not "take being threatened lightly by lawsuits or anything." 

With the defendant's entirely different version of events, which is very typical in domestic violence matters, the court's decision came down to credibility (including a consideration of the defendant's demeanor), finding that neither defendant nor his witness were credible.  As a result, the court found the defendant's actions were designed with an intent to annoy and alarm the victim, and that the victim needed protection in the form of a final restraining order to prevent further occurrences. 

In affirming the trial court's decision on appeal, the Appellate Division noted that the trial court properly addressed questions of credibility in resolving issues of fact.  In so doing, the Court noted how domestic violence situations often present circumstances where the defendant may engage in what could otherwise be deemed an innocent act as a way to "mask" the underlying misconduct.  Here, the defendant's version of events involved him arriving at the victim's place of business with a legitimate health-related purpose. 

Thus, while the trial court's findings against defendant required it to take inferences based on the evidence presented, the Appellate Division affirmed the finding that defendant had engaged in an act of harassment under subsection (a) because his conduct had "no rhyme or reason", thereby causing the victim's embarrassment and annoyance, as well as possibly placing her job at risk.  It also found that the defendant engaged in a course of conduct under subsection (c) because his conduct took place over several days. 

Considering the divergent versions of events presented by each party, it seems that this matter really did, in fact, come down to each party's credibility and that of their witnesses.  Since great deference is afforded to such findings, the trial court's decision was affirmed.

On another occasion, the plaintiff went to pick up the children from the defendant’s home only to find that he cut the 3-year-old’s hair from halfway down her back to her shoulders and gave her bangs. He also cut the 22-month old’s hair “straight across the front and when it was wet it wasn’t straight.” The plaintiff was angry and thought this was done to harass her. The defendant claimed it was part of a “beauty makeover” and one of the daughters asked for a haircut.

Several days before obtaining the temporary restraining order, the plaintiff claimed that the defendant again cut an inch from only one side of the 3-year old’s hair. The defendant denied this. The plaintiff also stated that when she was leaving with the daughter, the defendant told the daughter he didn’t know when he would see her again because “mommy was being mean . . . and keeping her away from him.” He said this even though he had regular court-ordered parenting time with the children on a weekly basis.

The Appellate Division panel upheld the trial court’s decision that the defendant’s actions towards the plaintiff constituted harassment under N.J.S.A. 2C:33-4(c) because he engaged in a “course of alarming conduct or of repeatedly committed with purpose alarm or seriously annoy the [plaintiff].” The panel noted that the plaintiff repeatedly told the defendant she wanted to be left alone. Even so, the defendant called her a “mean mommy” in front of the children and gave the daughters “haircuts that, at best were amateurish, and at worst, ‘ruined’ their hair knowing that plaintiff would be upset.”

The defendant’s behavior, particularly in the presence of the children, was certainly inappropriate. However, did it truly warrant a FRO? A FRO carries serious consequences. The abuser cannot own a firearm and will be listed in the domestic violence registry, which is available to law enforcement agencies and Family Court domestic violence personnel. The violation of a FRO constitutes a criminal offense, which results in mandatory arrest and in some cases, jail time. In certain circumstances, one with an FRO can lose his/her job, especially those jobs that require the carrying of firearms or other weapons. One’s application for future employment or license certification could even be tarnished when the applicants responds “yes” to the question “have you ever been arrested?”

Perhaps the more appropriate result would have been to reconsider the defendant’s parenting time given his inappropriate actions in front of the children. On the other hand, maybe the court got it right and prevented the situation from escalating beyond control. Either way, this case teaches us that the broken-hearted must be conscious of the consequences of their untamed emotions.

Also, a defendant may be tempted to contact the victim despite existing restraints via several different methods, whether it be directly, through a third person, and the like.  It is critical that the client understands the potential ramifications of making such contact, including, but not limited to, an arrest for criminal contempt prior to the final hearing.  While it may be necessary to be tough on the client (some obviously more than others) so he knows not to put himself at risk, it is also important for your client to sense that you as his lawyer understand both the legal and human elements to these sensitive matters.

That being the case, what kind of legal representation does a defendant need under these circumstances?

Detailed preparation is key.  Obtain all available documents and information from the police department via subpoena, be sure to subpoena your witnesses should they not be willing to appear voluntarily, and procure all available transcripts of proceedings related to the victim obtaining the TRO.  Phone records and text messages might also be critical, as well as any recordings, which should be carefully reviewed and utilized at a hearing.  For instance, the victim might have had to appear before a judge to obtain or amend a TRO.  Should that be the case, there is likely a record of testimony provided by the victim.  Comparing that record to the contents of the victim's TRO, potential statements provided in a police report, and the like, are critical to identifying inconsistencies and issues that may impact upon the victim's credibility.  At the end of the day, a final hearing is often a matter of he said/she said, causing a battle of credibility left to the trial judge to determine.

To that end, preparing your client to defend himself during a final hearing is also important, down to even what clothes he will wear to court, how he should sit, how he should talk, where he should look while testifying, etc.  As I said before, credibility is more than key.  With regard to having a police officer testify, be sure as to what the officer will testify and understand the Rules of Evidence with regard to authenticating a police report.  Tangentially, be sure to show courtesy and respect to the police department and officers, demonstrating an understanding that, while the officer is required to respond to the subpoena and appear in court, it is often an inconvenience that interferes with work and/or days off.  I find that an officer who hears that approach from me is more willing to cooperate even with a subpoena.

While this is not an exhaustive approach by any means, one last thing that might seem obvious - know the law.  It might seem as if the law is almost secondary in a domestic violence matter, but having a knowledge of the elements of the claims being alleged and the underlying case law not only helps me frame my examination, but my closing summation as well.  I typically review the "key" cases before a final hearing, just to refresh my recollection of the notable portions and holdings that the trial court will have to consider.

Whether a final hearing occurs or a matter is dissolved and restraints incorporated into a Consent Order, the most important thing that that I keep in mind is that, no matter what the situation, it is  the defendant's potential livelihood at stake that requires both a legal and human approach to representation.

Interestingly, the Appellate Division did not say that such an order was automatically impermissible.  To the contrary, they held that the trial court has the inherent authority of, in an appropriate fashion and under proper circumstances, to order the exclusion of a spouse from the marital home, whether or not there has been domestic violence.  This is sometimes called "Roberts restraints" named after a case called Roberts v. Roberts (as well as a few others) that predated the domestic violence act.  What makes this interesting is that many have argued that Roberts restraints no longer exist after the enactment of the domestic violence act.  The Appellate Division seemingly puts an end to this debate with this case (though parenthetically, I recently successfully argued that Roberts restraints should be used to keep a parent out of the marital home based upon certain conduct that was detrimental to the children.)

However, the Appellate Division deemed them inappropriate in this case for the reasons that follow:

In this case, we are convinced that the Family Part overreached in granting an out-of-home restraint under the posture of the proceedings. Furthermore we are troubled by the
abruptness with which the issue arose, and the inability of Alan to fairly respond to the sua sponte restraints imposed by the court in the context of Cari's unsuccessful PDVA complaint. The first mention of barring Alan from the marital home came after the Family Part exonerated him of committing any acts of domestic violence. The court did not deem Alan's conduct to even be merely evidential of a domestic contretemps, but rather
held that no predicate acts under the PDVA were committed.   ...

Then, without alerting the parties to the court's thoughts, the Family Part embarked upon a brief discussion of the children's best interests. There was nothing in the FV action
that materially touched upon those best interests, and although the court certainly maintained the raw authority to oversee the condition of the children, the manner of addressing those interests trampled Alan's rights. Neither Alan nor Cari had an opportunity to present detailed and relevant evidence about the children living at home
and the effect of both parents' presence vis-à-vis their wellbeing.

In the absence of an emergency, the Family Part should not have acted without either giving the parties fair notice of its intentions, or waiting for a proper application to be made
by one or both of the parties pursuant to Roberts ...

In this case, the only evidence concerning the best interests of the children came from the testimony of the upset teenage daughter of the parties.   The Appellate Division held that that was an insufficient foundation upon which to construct the out-of-home restraint imposed by the court. The Court noted that it neither afforded the parties a fair opportunity to develop best interests evidence nor permitted them to adequately examine and cross-examine their daughter on those provocative issues.

What this tells us is that Roberts is alive and a defendant should be prepared for the possibility of a Roberts application if the children's best interests could be harmed by the parties remaining in the same home pending a divorce.

Another result of these limited living options is that spouses are often hyper-vigilant to anything that goes on in the home.  One party (if not both) is often recording the other party without his or her knowledge and, in an effort to obtain what is believed to be usable "evidence" in the divorce proceedings, will incite arguments, welcome conflict, and the like.  Every argument appears heightened and can be abusive, often leading to the domestic violence complaint and temporary restraining order that the alleged victim hopes will become a final order to keep the other party out of the home for good.  Whether a court finds, however, that the argument that resulted in the restraining order was heightened merely because of the divorce or was an actual act of domestic violence requiring immediate protection is a steep hill for the victim to climb.  The result could be a dismissal of the domestic violence complaint, thereby allowing the accused spouse to actually move back into the marital residence!  In one matter in which we were involved, the temporary restraining order was dismissed after a final hearing and, within a few hours, the other spouse was at the front door of the home to get back in. 

Another option is to mutually agree to withdraw the domestic violence complaint and enter into an Order by consent, incorporating "civil" restraints that are enforceable by a motion in your divorce proceeding.  A common restraint as part of such orders is that the defendant spouse in the domestic violence complaint will agree to stay out of the home.  However, that spouse will often refuse to agree to stay out of the home, knowing the potential financial and custodial impacts his departure may cause for the overall outcome of the divorce proceeding.

At that point, can you leave the home?  Of course.  Can you leave with the children?  Usually not without a set parenting schedule upon your departure or some form of Order allowing you to do so.  While you might have always been the primary caretaker, that usually does not necessarily entitle you to simply vacate the home with the children and dictate parenting time as you see fit.  From the other parent's perspective, he might believe that you are simply looking to get a "leg up" in the litigation, just as he might have felt you were trying to do when you filed that domestic violence complaint during the divorce proceeding. 

To that end, many cases commence with one party having already left the home for a variety of reasons.  If the spouse who vacated the home was financially supporting the household, and the other spouse remains in the marital home with the children, he might find it financially difficult to support two households during the divorce proceedings stemming from a pendente lite (during the proceeding) support obligation.  It is all too common for that supporting spouse to all of a sudden show up at the door as the divorce starts, seeking to move back in.  Whether his lawyer advised him to move back home because of the financial burden that is soon to befall upon him, or that he is hurting his own custody claim if he is not in the same residence with the children 24-7 during the divorce, oftentimes he has the ability to move back in to the chagrin of the other spouse. 

Where does that leave us?  It is for that reason why getting along or simply managing to co-exist in the marital residence (whether for the sake of the children or otherwise) is critical to moving a divorce matter forward in what one hopes will be a reasonable manner.

The next day, husband was present at the children's basketball game.  Wife testified that she brought a friend to the game as she was fearful of husband's state of mind given the events of the prior evening.  The basketball game was crowded and wife and her friend found a seat in the bleachers.  As they sat down they heard husband immediately begin to scream down "verbally abusive words".  This lasted for some period of time.  Wife did not return home that night but the next day when she did she discovered a dead cat with its head smashed lying on the trunk of her car and the front picture window of the house shattered.  Husband denied committing these acts.  These parties had a prior history of similar types of domestic violence.

Defendant appealed the final restraining order issued by the trial court arguing that his conduct was not 'harassment' as defined under the statute, that he didn't have the requisite intent to commit harassment, and that the totality of the circumstances didn't support the entry of a final restraining order.  The Appellate Court affirmed the entry of the final restraining order. 

The summarized definition of harassment under the statute is as follows:

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.
 

In affirming the final restraining order, the Court found that husband had conceded to using offensively coarse language.  It also found that his speech invaded wife's privacy.  The last prong, whether his purpose was to disturb, irritate or bother his wife was held to be affirmative.  Husband's testimony that his anger over the court order was the catalyst for his outburst will not shield him from reach of the statute.  The suggestion that anger would somehow negate an intent to harass was rejected.  In this case, the nature of the verbal attack, the manner it was delivered, and the public nature of it all suggest a strong purpose to harass.

Many divorces are acrimonious.  Acrimony and anger will not excuse or negate purposeful, harassing behavior committed by one party against the other, even with a volatile divorce pending.

Based upon the testimony and the facts adduced at trial, the trial judge entered the FRO, finding as follows:

[The parties] both agree they never went out on [a] date, so to speak. Didn't go to a movie. Didn't go to restaurants. Didn't go out to eat. Didn't visit each other's family. Didn't go to clubs, church, shopping together or any of those typical incidents of a dating relationship, but they were involved in a relationship of more than hi and bye friends.

A.P. appealed the trial court’s decision, alleging that the evidence failed to establish the parties had a dating relationship within the meaning of the Act. The Appellate Division agreed and reversed the trial court’s grant of a Final Restraining Order. In doing so, the Appellate Division examined a number of factors that led to their conclusion:

(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?

Interestingly, the present case seems to be in conflict with the Appellate Division’s statements in the “escort case” (not quoted in C.K.), namely:

…while those guidelines are helpful, the principles underlying the Prevention of Domestic Violence Act "would not be served by a cramped interpretation of what constitutes a dating relationship."

While here it is undisputed that the two parties chit-chatted, never engaged in typical dating activities and never were intimate, it certainly seems as though both parties viewed themselves as “more than friends.” This must beg the question of whether the Court found determinative the fact that the parties were not sexually intimate. Interestingly, it seems that the Court views slightly “more than friends” as not a “dating relationship” as long as there is no sex involved, when, at the same time, paid sex is viewed as falling within the Act. We will keep you posted if and when the Court elaborates.

The Supreme Court, who issued a rather limited decision, instead relied upon the reasons expressed in the Appellate decision. Crespo v. Crespo, 408 N.J. Super. 25 (App. Div. 2009). In that decision, Judge Fisher addresses each of defendant’s arguments, finding that none of defendant’s constitutional rights have been violated. Judge Fisher’s decision found no merit in any of Mr. Crespo’s arguments. Although Judge Fisher did acknowledge that in certain circumstances a party may seek leave of the Court to obtain discovery prior to a final restraining order hearing. Depos v. Depos, 307 N.J. Super. 396, 400, 704 A.2d 1049 (Ch.Div.1997).

What is most interesting about Crespo v. Crespo is that the New Jersey Supreme Court did not have to grant certification from the Appellate Division – meaning the New Jersey Supreme Court did not have to hear the appeal. Yet, the New Jersey Supreme Court chose to hear the appeal and then simply affirmed Judge Fisher’s decision. This sends a clear message to domestic violence litigants and attorneys representing those individuals.  

You can read more about this case by reading our other blog entries, here or here.

In a recent unpublished decision, M.C.B. v. Victoria Vartanian, decided February 5, 2010, Appellate Division, Victoria Vartanian allegedly harassed and threatened her ex-boyfriend M.C.B.     M.C.B. contacted the police and had a judge issue a TRO. The TRO was served upon Ms. Vartanian, but only one day before the FRO hearing. The following day, at the FRO hearing the judge failed to advise Ms. Vartanian that: (1) there were consequences associated with the issuance of the FRO; (2) she had the right to counsel; (3) had the right to seek an adjournment to find counsel; and (4) had the right to subpoena witnesses and generally prepare for the hearing. As a result, notwithstanding the trial judge granted the FRO, the Appellate Division ordered a new hearing because Ms. Vartanian was not afforded the minimum requirements of due process (a right guaranteed by the Constitution).   

Every individual has a right to protect their Constitutional rights, even when they are accused of domestic violence. While I am a staunch opponent of domestic violence, the issuance of an FRO can have long-lasting implications on the alleged abuser. If going to be issued, it should be after due process is granted.

Law enforcement officers have a reputation of protecting one another, no doubt a result of working a dangerous job where they depend on one another for their safety. This type of camaraderie can no doubt foster a public perception that law enforcement officers would be biased during the course of an investigation of one of their own.

The model policy not only addresses remedial steps, but also preventative steps that law enforcement agencies can take to detect and prevent domestic violence, including: background investigations for new employees that would screen out candidates with histories of domestic violence or sexual assault; psychological examinations of all candidates for law enforcement positions and regular annual training on domestic violence issues and the impact of domestic violence within police departments; and supervisors would be trained on how to recognize early warning signs of domestic violence behavior such as excessive or increased use of force on the job, deteriorating work performance, or alcohol/drug abuse.

The new model policy also details incident response protocols, reporting and documentation protocols and recommends that any allegations of domestic violence offenses by high-ranking law enforcement officers - police chiefs or police directors -- be referred to prosecutor’s offices for oversight. While these responses are helpful to law enforcement officers, the new model policy is important if an attorney is involved in the representation of a party where one of the parties is a law enforcement officer. The integrity of a police report at trial or a hearing will be measured by the testimony of the police officer and the protocols that were taken during the investigation. If protocols were followed, under this new policy the police report could be given greater weight and bolster the testimony. If protocols were not followed, the police report and testimony could be found less credible.

In New Jersey  a victim of domestic violence can apply for a temporary restraining order at a county courthouse or at a police station by applying to a municipal judge.  Once a temporary restraining order is issued either a hearing is held where it becomes final or it is dismissed.  (The temporary restraining order can also be resolved through negotiations amongst the parties if there is an active divorce or other family court action pending - however, the resolution will not have the same protections and enforcement rights that a domestic violence restraining order does.) 

If this bill is passed, what happens in those instances where an individual is falsifying an act of domestic violence in order to get an advantage in the divorce action or to have the other party removed from the residence?  Unfortunately, there are instances where the Prevention Against Domestic Violence Act is abused by individuals who falsify claims of domestic violence for just these reasons.  It would appear that in a case where the claims have been falsified, under this new proposed legislature, the other party could essentially be held hostage by the threat of returning to court and imposing restraints.  It seems to me that the legislature may need to add more  protections to ensure the law is not abused.

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.