I have now blogged a few times about the importance for due process in domestic violence matters.  The Appellate Division just gave us another unpublished case, B.L.F. v. T.G.C., to remind litigants and practitioners that the plaintiff in a domestic violence action is limited to the four corners of the Temporary Restraining Order (“TRO”) and, if the TRO is amended or the plaintiff testifies about incidents outside of those four corners,  the defendant must be given the option to have more time to prepare their defense.  Interestingly, B.L.F. reiterates this requirement even where the Appellate Division affirmed the Final Restraining Order (“FRO”) based on a predicate act that was unrelated to the testimony outside of the TRO,  but reversed the findings of additional predicate acts that may have been impacted by such testimony.  Thus, the net result does not materially impact the defendant because the FRO stands without question.

In B.L.F., a physical altercation occurred in the parking lot of Plaintiff’s gym where Defendant appeared unannounced. Neither party disputes that Plaintiff was in her car and Defendant’s arm was in the car window.  Plaintiff testified that she tried to roll up her car window after telling Defendant she didn’t want to speak to him, Defendant pushed the window down, they screamed at each other, Plaintiff began to back up and then Defendant grabbed her arm leaving bruises on her arm of which she had pictures admitted into evidence.  Defendant testified that Plaintiff rolled up the window while Defendant tried to get his arm out and then she released the window (by a centimeter), he got his arm out and fell to the ground.  The trial court found Plaintiff credible and that Defendant’s version of the incident “defied logic”.  The trial court entered an FRO against Defendant based on the predicate act of assault related to this incident, as well as on harassment and stalking based on other incidents of Defendant appearing unannounced at plaintiff’s home and restaurants – two of which were not included within the TRO.

The Appellate Division stated:

We conclude that it was improper for the trial court to consider testimony concerning these two additional episodes without asking the defendant whether he needed time to prepare a response to those new allegations. It is not clear on this record whether and to what extent plaintiff’s testimony concerning these additional incidents may have affected the trial’s court’s conclusions with respect to the harassment and stalking predicate offenses. It is clear, however, that plaintiff’s testimony about these two additional incidents would have no effect on the trial court’s findings with respect to the assault predicate offense and the need for a FRO based on that assault.


The Appellate Division reiterated a trial court’s duty to pose questions from the bench when one or both litigants are self-represented, but that those questions must be designed to elicit testimony about allegations within the TRO, understanding that testimony may lead to the revelation of other events, as provided by J.D. v. M.D.F., 207 N.J. 458 (2011).  Like contemplated in J.D., the trial court in B.L.F. asked questions of Plaintiff.  However, the issue arose by the trial court asking: “Were there other places and times when the defendant appeared without notice?”, which elicited testimony outside of the TRO and was followed up with: “”Do you have any additional testimony for the Court to consider that you’ve not already provided?”, again eliciting testimony outside of the complaint.  While the Appellate Division did not find fault in the questions themselves, the trial court did not explicitly give Defendant the opportunity to request an adjournment after Plaintiff testified about incidents beyond those listed in the TRO.

Notably, the Appellate Division found in favor of Defendant on this limited issue even though (1) Defendant may have known about his right to request an adjournment because earlier that day Plaintiff amended her TRO and Defendant chose to proceed after the trial court asked him if he was prepared to respond to the new allegations, (2) he didn’t object to the questions and (3) his testimony included a response to one of the two new incidents that Plaintiff testified about.  Reading into this, the Appellate Division opined that Defendant may not have been prepared to defend against both new incidents since he only testified about one.

The Appellate Division also found that the testimony outside of the TRO may have impacted the stalking and harassment findings because the trial court discussed it in the oral decision.  However, the Appellate Division specifically opined that the additional incidents did not impact the assault finding because they were unrelated.

Finding the predicate act is only the first step of a FRO hearing.  We then look to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) to determine whether an FRO is necessary to protect the victim.  The need for protection is presumed when the underlying act is of physical violence.  Therefore, the Appellate Division found that the testimony outside the TRO did not impact the trial court’s Silver analysis as it relates to assault.

B.F.M. emphasizes the need to specifically ensure on the record that the defendant in a domestic violence matter is prepared to proceed whenever a TRO is amended or testimony is given outside the four corners of the TRO – even when the defendant was made aware of this right earlier in the same day but for another matter, when the defendant touched upon some of the new testimony within his/her own testimony and when the plaintiff is entitled to an FRO for other predicate acts.

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