In a recent decision, E.H. v. K.H., the Appellate Division made clear that a finding of harassment in connection with the entry of a domestic violence restraining order must be based upon a judge’s findings on all elements of the criminal statute incorporated in the New Jersey Prevention Against Domestic Violence Act, qualified by any subsequent decisional law narrowing or clarifying the statute.

In E.H., the trial judge found that the Defendant had committed harassment against the Plaintiff and that there was a need for the protection of a domestic violence restraining order to prevent against the further acts of domestic violence.  The Defendant had, among other acts of violence, anonymously circulated copies of his Counterclaim for Divorce (which were filled with embarrassing allegations about the Plaintiff including allegations that she had affairs with her co-workers) to multiple individuals unrelated to the divorce litigation between the parties such as Plaintiff’s supervisor and parents.

The Defendant argued that he had a right to disseminate his Counterclaim for Divorce and that the trial Judge’s decision to enter a restraining order against him on this basis was an infringement on his First Amendment rights.  This issue came up several years ago in a New Jersey Supreme Court decision, State v. Burkert.  In Burkert, the Supreme Court narrowed the scope of what it viewed as an overbroad and vague definition of harassment set forth by the legislature.  That definition was:

[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.

N.J.S.A. 2C:33-4.

In Burkert, the Supreme Court narrowed the definition of “any other course of alarming conduct” and “acts with purpose to alarm or seriously annoy” as “repeated communications directed at a person that reasonably put that person in fear for his safety or security or that intolerably interfere with that person’s reasonable expectation of privacy.”

In E.H., the trial judge failed to consider the narrowing of the definition of harassment in Burkert.  As a result, the Appellate Division held that the enumerated potential acts of domestic violence contained in the New Jersey Prevention of Domestic Violence Act not only incorporate, by reference, the statutorily defined elements, but also any modifications made to those elements by the Supreme Court to satisfy constitutional requirements.


headshot_diamond_jessicaJessica C. Diamond is an attorney in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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