In 2009, Eric Solotoff did a blog post on the Abuse and Misuse of the Domestic Violence Statute. Recently, I too have seen a rash of reversals in the Appellate Division as to alleged offenses that the trial court has found to constitute domestic violence.  It got me thinking; is overuse and misapplication, and yes, even abuse, under New Jersey’s Prevention of Domestic Violence Act prevalent?  Are trial courts missing the mark time and time again?

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In that vein, a recent unreported decision caught my eye this morning – S.M.K. v. H.T.   The Plaintiff, S.M.T. alleged that the defendant, H.T., had committed domestic violence against her, and obtained a Final Restraining Order against him.  His crime? Well, seemingly puppy love.

This was a brief dating relationship, which S.M.K. ended suddenly. H.T. tried to rekindle the relationship during a five-day period by sending numerous text messages, some of which were responded to by S.M.T. H.T. also attempted to visit S.M.K. at her parents’ house and left a letter on her apartment door.  In response, S.M.K. alleged stalking and harassment and the trial court entered a Final Restraining Order against H.T. for harassment.

On appeal, the Court reversed, stating that it was difficult to classify H.T.’s actions as domestic violence, when it is clear his purpose was not to harass S.M.K. but to reunite with her. It further found that his conduct here was neither violent nor abusive and there was no history of domestic violence. Moreover, there is no proof that H.T.’s intent was to alarm or annoy her.

Consider another recent (unreported) case: R.J.T. v. A.V.T.  There, the defendant’s conduct included: habitually staying out all night, drinking excessively to the point of intoxication, and arguing and exchanging verbal insults. The Appellate Division found that those acts individually and collectively, did not satisfy the statutory requirements to support a finding of harassment. The same was true of the remaining conduct identified by the plaintiff, including yelling, name calling and arguing.

In other reported decisions, the Appellate Division has also reversed findings of domestic violence based upon the following conduct:

  • A statement by a husband that, “I’ll bury you”
  • A husband’s act of pushing his way into his estranged wife’s bedroom;
  • A husband’s acts of calling his wife at work after they separated, threatening drastic measures if she did not supply him with money to pay bills and then turning off her telephone service;
  • A husband’s repeated use of offensively coarse language toward his wife.  The wife alleged that the husband used a vulgar hand gesture, kicked over a garbage can and constantly harassed her in person over the phone; and
  • A husband threats on one occasion that his wife was “going down.”

The fact is that time and time again, the Appellate Division has needed to step in and say that domestic violence is not the de minimus conduct found by trial courts to necessitate permanent and significant restraints against domestic violence defendants.

Consider the legislative history behind the Act:

The Legislature finds and declares that domestic violence is a serious crime against society; that there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.  It is therefore, the intent of the Legislature to assure that victims of domestic violence the maximum protection from abuse the law can provide.

The focus of the Legislature was regular, serious abuse between spouses, cohabitants and family members.  This is underscored by the references to torture, battery, beatings and killings in the findings.   Likewise was the long term damage suffered by children who observe such despicable acts.

I think the Appellate Division put it best in Bresocnik v. Gallegos: “The law, [sic] is not a primer for social etiquette and should not be used as a sword to wield against every unpleasant encounter or annoying interaction that occurs between household members, spouses, parents, or those who have had a dating relationship.”

It is important to remember, however, that trial courts have the monumental task of protecting victims and potential victims from serious abuse; the types of abuse referred to by the Legislature in passing the Prevention of Domestic Violence Act.  There is sometimes a fine line between couples behaving badly and actual domestic violence.

Still, while there are no readily available statistics as to how many restraining orders are issued each year and then reversed, it would certainly be interesting to examine the extent to which trial courts attempt to widen the breadth of the domestic violence statute through this sort of misapplication.

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Eliana T. Baer is a frequent contributor to the New Jersey Family Legal Blog and a member of the Family Law Practice Group of Fox Rothschild LLP. Eliana practices in Fox Rothschild’s Princeton, New Jersey office and focuses her state-wide practice on representing clients on issues relating to divorce, equitable distribution, support, custody, adoption, domestic violence, premarital agreements and Appellate Practice. You can reach Eliana at (609) 895-3344, or etbaer@foxrothschild.com.

 

The immortal George Carlin once said, “That’s the whole meaning of life, trying to find a place for your stuff. That’s all your house is, just a place for your stuff while you go out and get more stuff.”
 
 
In the context of Family Law, the topic of personal property is rarely discussed and consistently dismissed by the court and counsel. It is clear that both view personal property as being simply stuff. In fact, it has been assigned multiple euphemisms to it in order to deflate its relative importance. We have all heard the dismissive terms: chachka; accoutrement; trinket; fixture; knick knack; and of course, whatnot- a word specifically designed to describe all the things the item is actually not. In addition, there is often such contempt for personal property that we have created an amalgamation, personalty, simply in hopes of accelerating the process of distributing it by reducing the length of the term, itself.

Continue Reading Personal Property: From Picayune to Precious, Distributing the Immaterial Possession

We have written before on the topics of the use and misuse of the Prevention of Domestic Violence Act, and representing a litigant in a domestic violence matter.  Within the past few weeks, a few experiences have brought this topic back to the forefront, and I thought that now was a good time to address the issues, especially in the context of "resolving" such matters.  As a family law attorneys, we frequently encounter domestic violence as a component of our practice.  Whether it happens in the context of an ongoing divorce, entirely independent of a marital relationship, or something different altogether, each case is certainly different from the next, and each case resides on its own motivations, so to speak.  

What I mean by that is, the Prevention of Domestic Violence Act is a vital piece of legislation designed to protect actual victims of domestic violence.  Countless matters come across our desks involving legitimate, truthful victims in need of the law’s immediate protection from an abusive defendant.  Some of the most difficult matters involve those where we represent real victims with tragic fears of harm, including those who are immersed in the cycle of violence looking for a way out.  Considering the risk to such a victim if a final restraining order is not granted, the import of the litigation is vital.

On the other hand, many cases – typically in the context of an ongoing divorce matter – involve a litigation-minded spouse simply looking to get the proverbial "leg up" over the other spouse in that separate, but related matter.  Since the law is liberal in its protection of victims, it is often quite easy to procure a temporary restraining order, where the alleged victim can seemingly state whatever allegation he or she deems appropriate so long as it results in procuring a TRO.  There are several well known cases addressing the judiciary’s obligation to look out for those litigants who are trying to use the law to his or her advantage, as such an occurrence is unfortunately all too common. 

Continue Reading "RESOLVING" A DOMESTIC VIOLENCE MATTER – A CAREFUL BALANCING ACT

This post was written by Melissa M. Ruvolo, a new Family Law associate, in our Roseland office, and soon to be an official contributior to this blog.

Our blog frequently features discussions regarding what constitutes domestic violence to warrant the issuance of a Final Restraining Order (FRO). Perhaps the most frequently alleged “predicate act of domestic violence” is harassment under N.J.S.A. 2C:33-4. What may constitute “harassment” was recently raised in the unpublished Appellate Division decision of A.B. v. L.S.M. decided on May 6, 2011.

The parties were unmarried but had been living together for almost four years. They had two daughters – a 3-year old and a 22-month old. During an argument, the defendant called the plaintiff a “b-tch” and the plaintiff admitted she may also have cursed and yelled at him. The defendant attempted to leave the home but while doing so, got a flat tire. When he tried to fix it with a car jack, the plaintiff twice tried to remove the jack from under the car and the defendant pushed her shoulders each time. She threw the daughter’s sippy cup at his face and broke his nose. Both parties applied for temporary restraining orders, which were dismissed. The defendant eventually moved out of the home and parenting time was ordered by the Court.

Two months later, the defendant went to the plaintiff’s home and knocked on her bathroom window, pleading to speak with her. The plaintiff refused. On the way home from plaintiff’s house, the defendant sent her an apologetic text message stating that he had no idea how much he had hurt her and would leave her alone.

Several days later, when the defendant went to the plaintiff’s home to pick up the children for parenting time, he asked to speak with her. He told her he “really missed her” and wanted to “hug and kiss her.” She responded that she didn’t want to talk to him or “have him touch her.” Later that evening, the defendant sent a text message to the plaintiff claiming the children forgot a teddy bear and blanket. She offered to bring them to his home and he agreed. When the plaintiff arrived at the defendant’s front door, he told her the children were already asleep, leading her to believe that the entire incident was a ploy to get her there. According to the plaintiff, the defendant grabbed her to prevent her from leaving and she told him not to touch her. The plaintiff’s friend, who was waiting in the car, witnessed the defendant give the plaintiff an unwanted “bear hug.”

Continue Reading Domestic Violence: Bad Haircuts and an Unwanted Hug Can Constitute Harassment

Lately, it seems as if everywhere I turn I am representing a party in a domestic violence matter, whether in relation to or separate from an ongoing divorce matter.  With these recent experiences fresh in my mind, I thought I would take the time to blog about the lawyer’s role in representing a defendant in such matters.  While it is easy to sympathize with the victim, oftentimes it is the defendant who is falsely accused or caught up in a situation where the victim is trying to get a "leg up" over the other party in the context of a divorce. On of our prior post entited the The Abuse and Misuse of the Domestic Violence Statute, published almost 2 years ago, is perhaps our most commented on post.

Whether the person is the victim or defendant, each passing moment is critical in the compressed time between the filing of the domestic violence complaint and the final hearing to determine whether a temporary restraining order should be converted to a final (permanent) restraining order.  I paraphrase one recent client’s opinion as to his wife obtaining a TRO against him – with one call by her to the police, his entire life began crumbling before his eyes as his family and career had been put at risk.  

Continue Reading ONE APPROACH TO LEGAL REPRESENTATION OF A DEFENDANT IN A DOMESTIC VIOLENCE MATTER

The usual result after a domestic violence trial where the parties had been living together at the time of the entry of the Temporary Restraining Order (TRO) is that a Final Restraining Order (FRO) will be entered and the defendant kept out of the home, or the TRO will be dismissed and the defendant would be free to move in.  What usually does not happen, and in the majority of cases cannot happen, is that the trial judge dismissed the TRO but Orders the defendant out of the home anyway.  However, that is exactly what the trial judge did in the case of C.R. v. A.R., an unreported (non-precedential) Appellate Division opinion released on May 5, 2011. The Appellate Division disagreed that this was proper in this case and reversed.

After the trial, the trial judge dismissed the domestic violence complaint, finding that the evidence did not
demonstrate the occurrence of any acts of domestic violence. However immediately upon explaining why the complaint should be dismissed, the trial judge stated the following:

Now, I am somewhat troubled by what [Abby] indicated on the stand. And I think she, in a way, was conveying a message for all the children, and whether she felt, since she’s the oldest and the adult, that she should be the spokesperson for all the girls. But it’s clear that they don’t want the parents living together.

And I —— I tend to agree with them. I don’t think it would be in the parents’ best interest to be living in the house together, in light of what’s been going on.  So, since I do have the matrimonial act case in front of me, I am going to enter civil restraints. And the bottom line is I am going to prohibit [Alan] from resuming to reside in the house. And that’s on a temporary basis and without prejudice, but I think it would be in the best interests of the girls if that happened right now, especially in light of the fact that [Abby’s] going to be leaving shortly, will be out of the country, and I —— assume that she has somewhat been the —— the leader or the caretaker for the girls while this has been going on for the last two months. So, [Alan], I am not going to allow you back in the house to live.

 

Continue Reading Trial Judge Says You Didn't Commit Domestic Violence But Get Out – Appellate Division Says Not So Fast

Previously, I have blogged on the issue of domestic violence and the NJ Prevention Of Domestic Violence Act.  Our courts have carefully scrutinized this Act and its consequences, even determining whether and under what circumstances the issuance of a final restraining order can violate one’s right to due process.  Unfortunately, the issue of domestic violence arises all too often in family courts.

The recently published Appellate Court decision of C.M.F. v. R.G.F. arose from an appeal after the trial court issued a final restraining order against an ex-husband.  The act of domestic violence in question was found to be an act of harassment committed against the ex-wife while at their child’s sporting event.  The main allegation was that the ex-husband screamed and yelled obscenities and other unpleasantries aimed towards his ex-wife.

These parties had gone through a long and tumultuous divorce.  Ironically, in 2007 they agreed to parenting time arrangement for their children.  They’d each reside in the marital home on a 50/50 basis, with one party living in the home for 3 1/2 days/week with the children and leaving 1 hour before the other party arrived and then alternating.  This system seemed to work and avoided the parties having to see each other for quite some period of time.

In January 2009, after filing motions seeking to each have sole possession of the home with the children, an order was entered granting wife possession.  The husband was to continue with the same amount of parenting time but to take place out of the marital home.  On the day the order was received, wife text messaged husband to let him know what was ordered and to advise that she’d be taking their children to their basketball game and he could pick them up there.  She would also leave the children’s overnight bag on the porch for husband’s retrieval.  At some time later that evening, husband appeared at the home and a verbal altercation began between the parties.  Wife called the police who seemingly diffused the situation at that time.

Continue Reading DOMESTIC VIOLENCE POST DIVORCE

The Appellate Division recently presented in an unreported decision an educational primer on the criminal act of “harassment” under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (the “Act”), in Curry v. Curry, found here. In ultimately dissolving a Final Restraining Order entered by the trial court, the Appellate Division found that the evidence only established the existence of “domestic contretemps” during the course of a troubled marriage, insufficient to prove that harassment occurred under the Act. In so doing, the Appellate Division thoroughly reviewed the legislative purpose of the Act, how to establish harassment, and how the Act is not designed to protect against the common emotional difficulties that arise between parties during the course of a dissolving marriage. 

The factual scenario was relatively common – an argument occurred between a married couple when the husband believed that he had found direct evidence of the wife’s infidelity. The wife obtained a Temporary Restraining Order against the husband and, after a hearing, the trial court entered a Final Restraining Order against him, finding that he committed harassment under the Act. 

 

Continue Reading APPELLATE DIVISION PROVIDES PRIMER ON HARASSMENT UNDER THE PREVENTION OF DOMESTIC VIOLENCE ACT