A few months ago, I blogged about due process for defendants in domestic violence actions.  We now have another unpublished decision on this topic but with a different due process violation.  In the matter of S.C. v. Z.B., the parties had cross-temporary restraining orders (“TRO”) against each other stemming from the same incident involving an argument and broken plate.

In the TRO procured by S.C./husband, he alleged the predicate act of criminal mischief based on his allegation that Z.B./wife broke the plate during an argument in front of S.C. and their children.  Z.B. later procured a TRO against S.C. for the same incident alleging the predicate acts of criminal mischief and harassment based on her allegation that S.C. shoved her, grabbed the plate from her and broke the plate on the floor.  Each party alleged prior acts of domestic violence against the other.  After a lengthy five-day trial, the trial court entered an FRO against Z.B., based in large part on credibility findings, and denied Z.B.’s request for a final restraining order (“FRO”) against S.C. based on the same findings.  However, and what matters here, is the trial court’s finding that S.C. did not prove the underlying act of criminal mischief.  Rather, the trial court sua sponte (on its own) entered the FRO against Z.B. based upon harassment even though harassment was not alleged in S.C.’s TRO.  Therein lies the due process violation.

The issue here is this: The TRO serves as the complaint placing defendant on notice of the allegations for which he/she has the right to defend against.  This includes underlying acts, facts of the incident and prior domestic violence history.  The trial court is limited to the four corners of the TRO at the FRO trial.  Given that the harassment box was not checked off on S.C.’s TRO, Z.B. was not on notice to prepare a defense against harassment.  In practice, plaintiff’s in domestic violence matters often amend their TRO after the initial entry for a myriad of reasons, including to add other underlying acts, specify the facts of the underlying incident, adding to the history of domestic violence listed, etc.  Keep in mind that a party procuring a TRO is often in a frenzy having just experienced the allegations and called the police.  Also, the TRO is generally obtained without counsel.  Thus, it makes sense that the initial TRO would require amendments.  However, in order to assure due process to the defendant, the FRO hearing is adjourned following the TRO amendment so the defendant has an opportunity to prepare the appropriate defense.

This concept is codified in precedent setting case law as cited by the Appellate Division in S.C. v. Z.B., and is one that we often use in practice when representing either side on the domestic violence action.  As the plaintiff, you do not want to be in the position of S.C. and lose your FRO because you forgot to check a box or an adjournment was not granted when it should have been.  As the defendant, you need to ensure that you have appropriate notice of all allegations to prepare your case.

The takeaway here is simple but extremely important.  If you are the plaintiff, make sure your TRO is thorough and that you allege any relevant underlying acts based upon the facts of the incident.  If you did not have the opportunity to do so when you initially obtained the TRO, then have it amended.  Also, make sure that all of the relevant boxes representing the predicate acts are checked off (e.g. harassment, stalking, assault, battery, criminal mischief, etc.)   If you are the defendant, make sure you request an adjournment if needed to prepare your defense against the initial and future amended TRO.  Either party doing otherwise may be a fatal error as we see in S.C. v. Z.B.


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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