Sadly, it is not uncommon for parties to be “frequent flyers” in domestic violence court. Sometimes, the same party files and dismisses one or more times. Sometimes, parties settle with “civil restraints” or an Order in the divorce or other court proceeding that is akin to but less than a final Domestic Violence Restraining Order. Sometimes, people try and lose a domestic violence case but new issues arise.
Now, one part of the complaint for a Temporary Restraining Order requires a listing or narrative of prior acts of domestic violence. There is no requirement that the prior acts had to either be adjudicated to be domestic violence or for that matter, that they every have been reported in the past.
But what happens when prior acts were adjudicated by a court and determined not to amount to domestic violence? Can a victim raise the issues again in a future filing? Can a future judge determine that those prior acts were domestic violence, essentially disagreeing with the first judge.
This is exactly the issue that was addressed in the case of S.L. v. D.D., an unreported (non-precedential) Appellate Division decision released on January 23, 2025. The opinion is quite long but it is unnecessary to get into the nitty gritty of the facts.
In April of 2023, in the second domestic violence matter between the parties (the first one was voluntarily dismissed), the trial judge determined that a voice message threatening to slash her tires and an expletive-ridden text message to her current boyfriend did not amount to harassment, specifically finding plaintiff to not be credible.
Two months later, at the next Final Restraining Order hearing where two new occurrences were alleged, a different judge determined that the facts and allegations previously asserted at the April 2023 hearing amounted to the predicate act of harassment. The second judge also found plaintiff to be credible and that the two new occurrences also amounted to predicate acts of harassment and stalking and granted plaintiff and FRO.
Defendant appealed and the Appellate Division reversed – essentially finding that the trial judge should not have considered the prior acts which another judge already determined not to be domestic violence. The Appellate Division also determined that the two new occurrences weren’t domestic violence either. While the second part is interesting, this blog will focus on how the court dealt with the prior acts determined not to be domestic violence.
The legal nerd in me was attracted to this case because of the discussion of collateral estoppel, res judicata and the law of the case as it applies to domestic violence proceedings. The Appellate Division gave a primer, as follows:
Although the second trial judge was correct in noting that trial courts are instructed to consider the parties’ prior history of domestic violence, trial courts are constrained to abide by prior final orders of the court and cannot relitigate issues or claims already the subject of a final decision. See J.F. v. B.K., 308 N.J. Super. 387, 392 (App. Div. 1998). “Collateral estoppel is that branch of broader law of res judicata which bars re-litigation of any issue which was
actually determined in a prior action, generally between the same parties, involving a different claim or cause of action.” L.T. v. F.M., 438 N.J. Super. 76, 86 (App. Div. 2014) (quoting State v. Gonzalez, 75 N.J. 181, 186 (1977)). In the present matter, a prior trial court had previously determined the text messages did not constitute the predicate act of harassment, and the second trial judge erred in essentially reversing that decision when relying on the text messages to find defendant had committed the predicate act of harassment. If
Sydney disagreed with the first trial judge’s conclusions in dismissing TRO 2, she was free to seek reconsideration, which she voluntarily dismissed without prejudice, or seek an appeal of that decision. She could not re-litigate that matter before a different trial judge.
The Court went on to discuss the J.F. case, which procedurally was different because the trial court considered prior acts that were not set forth in the Complaint. While that offended due process notions, what was worse is that the prior acts alleged were previously dismissed at a prior hearing. The Court noted that the JF Court held that:
We continued, “[t]herefore, even if those acts had been alleged in the [instant] complaint, [the] plaintiff would be precluded under principles of res judicata and collateral estoppel from relitigating allegations which had been decided adversely to her in the earlier hearing.” Ibid.
Similar to the doctrine of collateral estoppel, “[t]he ‘law of the case’ doctrine embodies ‘the principle that where there is an unreversed decision of a question of law or fact made during the course of litigation, such decision settles that decision for all subsequent stages of the suit.'” L.T., 438 N.J. Super. at 88 (quoting Slowinski v. Valley Nat’l Bank, 264 N.J. Super. 172, 179 (App. Div. 1993)). “Both collateral estoppel and law of the case are guided by the ‘fundamental legal principle . . . that once an issue has been fully and fairly litigated, it ordinarily is not subject to re-litigation between the same parties either in the same or in subsequent litigation.'” State v. K.P.S., 221 N.J. 266, 277 (2015) (omission in original) (emphasis omitted) (quoting Morris Cnty. Fair Hous. Council v. Boonton Twp., 209 N.J. Super. 393, 444 n.16 (Law Div. 1985)). “However, whereas collateral estoppel may bar a party from re-litigating an issue decided against it in a later and different case, law of the case may bar a party from relitigating the same issue during the pendency of the same case before a court of equal jurisdiction.” Ibid. (internal citations omitted). Therefore, the law of the case doctrine applies only to “‘prevent re-litigation of a previously resolved issue’ in the same case,” and does not apply if the legal ruling asserted was issued in a case different from the case at bar. K.P.S., 221 N.J. at 276 (emphasis omitted) (quoting Lombardi v. Masso, 207 N.J. 517, 538 (2011)).
The Appellate Division then summarized that the trial court erred by impermissibly considering facts and allegations which were rejected by the first judge as not raising to the level of predicate acts of domestic violence and “offended the doctrine of collateral estoppel…”
One issue occurs to me which the Appellate Division did not address. One part of the definition of “harassment” speaks of a “course of conduct meant to alarm or annoy.” Now, maybe the initial occurrences in an of themselves did not rise to the level of harassment. But given plaintiff’s prior TRO, defendant had to understand that they could cause alarm or annoyance. Could not the prior actions been raised, not as a predicate act in an of themselves, but to demonstrate “a course of conduct.” Perhaps that issue will be addressed by a future court.
In any event, the answer is clear that they cannot form the basis of the FRO as an independent act of domestic violence.
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Eric Solotoff is the editor of the New Jersey Family Legal Blog and the Co-Chair of the Family Law Department of Fox Rothschild LLP. Certified by the Supreme Court of New Jersey as a Matrimonial Lawyer and a Fellow of the American Academy of Matrimonial Attorneys. Eric is resident in Fox Rothschild’s Morristown, New Jersey office though he practices throughout New Jersey. You can reach Eric at (973) 994-7501, or esolotoff@foxrothschild.com.