In the recent unpublished decision of L.G. v. T.G.. the Appellate Division addresses an issue that we are dealing with more and more – tracking one’s spouse through a hidden GPS on their car.  GPS in terms of domestic violence isn’t necessarily “new” – you can read about the beginnings in Eric Solotoff’s 2011 blog.  But this case also demonstrates that having a third party contract the private investigator services does not protect a defendant/spouse from entry of a final restraining order (“FRO”) based upon stalking and that reviewing the information/using it against the victim can also lead to the FRO based upon harassment.  Of note, although not explicitly stated, is that the tracking/private investigation was not intended to assist the defendant’s case, such as for cohabitation, but rather the opinion reads as though the only purpose of tracking the plaintiff was to learn about and question her whereabouts.  Other important factors that we often see, and which the court considered, include that the defendant was the sole wage earner and can therefore exert financial control against the plaintiff and the defendant used his larger physical stature to instill fear in the plaintiff.  In this very thorough decision, before addressing the merits of the appeal, the Appellate Division specifically stated that it “defer[s] to the judge’s thoughtful findings on this subject because those findings were solidly grounded on the judge’s credibility findings – he found L.G. much more credible than T.G., who was evasive – as well as other reliable evidence”.

In L.G., the Complaint for Divorce was filed in July 2017 following an approximate thirteen year marriage that commenced in 2004 and fell apart due to financial issues related to L.G.’s spending habits, including spending down the parties’ joint accounts, their daughter’s accounts, defendant’s inheritance and substantial credit card charges, causing T.G. to place her on a budget. The relevant restraining order in L.G. occurred after the divorce complaint was filed and after L.G. dismissed a pre-complaint temporary restraining order (“TRO”) against T.G.   That initial TRO resulted from a telephone call and text message exchange between the parties in response to T.G. closing their joint bank account.

Back to the TRO at issue here… Approximately three months post-complaint in October 2017, T.G. had his father retain a private investigator to conduct surveillance on L.G., including by having a GPS tracking device placed on her vehicle without her knowledge.  L.G. did not discover the device for nearly a month. During this period, there were 88 successful logins to view activity on the GPS that provided real-time whereabouts and approximately 391 updates from the GPS.  L.G. was followed personally for about three days.  Also during this period, and on the day that L.G. discovered the GPS, T.G.  questioned L.G. about her whereabouts and evasively confronted her with information he knew  from the tracking device before she knew it existed.  The parties got into an argument and each of them obtained a TRO against the other.  Following a trial, L.G. was granted an FRO and T.G.’s TRO was dismissed.

L.G.’s FRO was entered based upon the predicate acts of stalking and harassment – both of which stem from the GPS.  The statute guiding the predicate act of stalking is:

N.J.S.A. 2C:12-10(b)

  • [a] person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.

N.J.S.A. 2C:12-10(a)

  • For the purposes of this statute:
    • (1) “Course of conduct” means repeatedly maintaining a visual or physical proximity to a person; directly or indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about a person, or interfering with a person’s property; repeatedly committing harassment against a
      person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct of a combination thereof directed at or toward a person.
    • (2) “Repeatedly” means on two or more occasions.
    • (3) “Emotional distress” means significant suffering or distress.
    • (4) “Cause a reasonable person to fear” means to cause fear which a reasonable victim, similarly situated, would have under the circumstances.

T.G. came up with plenty of defenses regarding the GPS, including that “he did not personally install it; he never threatened her; he did not personally maintain visual and physical proximity to her ; and that his behavior was not persistent because it occurred over a one week period”  However, the Appellate Division didn’t buy it.  Rather, the court looked to the purpose of the stalking statute to “cast a wide net of protection for stalking victims by broadly prohibiting and punishing persistent, unwanted, and frightening behaviors” and “to intervene in repetitive harassing or threatening behavior before the victim has actually been physically attacked”.  The court also looked to the purpose of the Prevention of Domestic Violence Act to assure the maximum protection to victims.  Against this background, the court did not forgive T.G. because the device was on L.G.’s car as opposed to inside the home, such as in a bathroom or bedroom where L.G. would have a greater expectation of privacy.  Additionally, the court did not buy T.G.’s arguments that he should avoid the consequences of an FRO because he did not physically place the GPS on L.G.’s car and instead authorized his dad to do so.   Ultimately, the Appellate Division opined that “[i]ndirectly and through a third party, T.G. had L.G. followed, monitored, observed, and surveilled, by using adevice in violation of N.J.S.A. 2C:12-10(a).”

The Appellate Division then turned to harassment, which incorporated the same behavior from the above stalking, although not placement of the GPS itself. The statute guiding the predicate act of harassment is:

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 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.

Here, the trial court found that while the GPS was not harassment as T.G. did not intend for L.G. to detect the device, he did use the information obtained from the GPS to intentionally harass, intimidate and try to trap L.G., as well as to cause alarm and serious annoyance.

As to the history of violence and need for protection, the trial court found L.G.’s testimony credible regarding her fear of T.G. and need for an FRO to “feel safe with her kids”, as well as the parties’ prior arguments including an incident when T.G. said to L.G. “do you know what one punch will do to your face?”, as well as the physical incident when T.G. pushed and pinned down L.G. and, as L.G. later testified, threw her phone against the wall.  T.G. had also demanded access to her phone and contacts.

When I said this opinion was thorough, I wasn’t kidding, but it’s important.  The takeaway here is to think twice about placing a GPS on a spouse’s vehicle.  This is especially true when the surveillance has no bearing on your underlying claims and is merely for personal knowledge.  It also doesn’t matter that you may feel aggrieved by your spouse for spending habits or similar reasons.  Remember, even your dad can’t get you out of this one.


Lindsay A. Heller is an associate in the firm’s Family Law practice, based in its Morristown, NJ office. You can reach Lindsay at 973.548.3318 or lheller@foxrothschild.com.

Lindsay A. Heller, Associate, Fox Rothschild LLP

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