The Appellate Division recently presented in an unreported decision an educational primer on the criminal act of “harassment” under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the “Act”), in Curry v. Curry, found here. In ultimately dissolving a Final Restraining Order entered by the trial court, the Appellate Division found that the evidence only established the existence of “domestic contretemps” during the course of a troubled marriage, insufficient to prove that harassment occurred under the Act. In so doing, the Appellate Division thoroughly reviewed the legislative purpose of the Act, how to establish harassment, and how the Act is not designed to protect against the common emotional difficulties that arise between parties during the course of a dissolving marriage. 

The factual scenario was relatively common – an argument occurred between a married couple when the husband believed that he had found direct evidence of the wife’s infidelity. The wife obtained a Temporary Restraining Order against the husband and, after a hearing, the trial court entered a Final Restraining Order against him, finding that he committed harassment under the Act. 


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.