New Jersey Prevention of Domestic Violence Act

In the recent unpublished decision of L.G. v. T.G.. the Appellate Division addresses an issue that we are dealing with more and more – tracking one’s spouse through a hidden GPS on their car.  GPS in terms of domestic violence isn’t necessarily “new” – you can read about the beginnings in Eric Solotoff’s 2011 blog.  But this case also demonstrates that having a third party contract the private investigator services does not protect a defendant/spouse from entry of a final restraining order (“FRO”) based upon stalking and that reviewing the information/using it against the victim can also lead to the FRO based upon harassment.  Of note, although not explicitly stated, is that the tracking/private investigation was not intended to assist the defendant’s case, such as for cohabitation, but rather the opinion reads as though the only purpose of tracking the plaintiff was to learn about and question her whereabouts.  Other important factors that we often see, and which the court considered, include that the defendant was the sole wage earner and can therefore exert financial control against the plaintiff and the defendant used his larger physical stature to instill fear in the plaintiff.  In this very thorough decision, before addressing the merits of the appeal, the Appellate Division specifically stated that it “defer[s] to the judge’s thoughtful findings on this subject because those findings were solidly grounded on the judge’s credibility findings – he found L.G. much more credible than T.G., who was evasive – as well as other reliable evidence”.

In L.G., the Complaint for Divorce was filed in July 2017 following an approximate thirteen year marriage that commenced in 2004 and fell apart due to financial issues related to L.G.’s spending habits, including spending down the parties’ joint accounts, their daughter’s accounts, defendant’s inheritance and substantial credit card charges, causing T.G. to place her on a budget. The relevant restraining order in L.G. occurred after the divorce complaint was filed and after L.G. dismissed a pre-complaint temporary restraining order (“TRO”) against T.G.   That initial TRO resulted from a telephone call and text message exchange between the parties in response to T.G. closing their joint bank account.

Back to the TRO at issue here… Approximately three months post-complaint in October 2017, T.G. had his father retain a private investigator to conduct surveillance on L.G., including by having a GPS tracking device placed on her vehicle without her knowledge.  L.G. did not discover the device for nearly a month. During this period, there were 88 successful logins to view activity on the GPS that provided real-time whereabouts and approximately 391 updates from the GPS.  L.G. was followed personally for about three days.  Also during this period, and on the day that L.G. discovered the GPS, T.G.  questioned L.G. about her whereabouts and evasively confronted her with information he knew  from the tracking device before she knew it existed.  The parties got into an argument and each of them obtained a TRO against the other.  Following a trial, L.G. was granted an FRO and T.G.’s TRO was dismissed.

L.G.’s FRO was entered based upon the predicate acts of stalking and harassment – both of which stem from the GPS.  The statute guiding the predicate act of stalking is:

N.J.S.A. 2C:12-10(b)

  • [a] person is guilty of stalking, a crime of the fourth degree, if he purposefully or knowingly engages in a course of conduct directed at a specific person that would cause a reasonable person to fear for his safety or the safety of a third person or suffer other emotional distress.

N.J.S.A. 2C:12-10(a)

  • For the purposes of this statute:
    • (1) “Course of conduct” means repeatedly maintaining a visual or physical proximity to a person; directly or indirectly, or through third parties, by any action, method, device, or means, following, monitoring, observing, surveilling, threatening, or communicating to or about a person, or interfering with a person’s property; repeatedly committing harassment against a
      person; or repeatedly conveying, or causing to be conveyed, verbal or written threats or threats conveyed by any other means of communication or threats implied by conduct of a combination thereof directed at or toward a person.
    • (2) “Repeatedly” means on two or more occasions.
    • (3) “Emotional distress” means significant suffering or distress.
    • (4) “Cause a reasonable person to fear” means to cause fear which a reasonable victim, similarly situated, would have under the circumstances.

T.G. came up with plenty of defenses regarding the GPS, including that “he did not personally install it; he never threatened her; he did not personally maintain visual and physical proximity to her ; and that his behavior was not persistent because it occurred over a one week period”  However, the Appellate Division didn’t buy it.  Rather, the court looked to the purpose of the stalking statute to “cast a wide net of protection for stalking victims by broadly prohibiting and punishing persistent, unwanted, and frightening behaviors” and “to intervene in repetitive harassing or threatening behavior before the victim has actually been physically attacked”.  The court also looked to the purpose of the Prevention of Domestic Violence Act to assure the maximum protection to victims.  Against this background, the court did not forgive T.G. because the device was on L.G.’s car as opposed to inside the home, such as in a bathroom or bedroom where L.G. would have a greater expectation of privacy.  Additionally, the court did not buy T.G.’s arguments that he should avoid the consequences of an FRO because he did not physically place the GPS on L.G.’s car and instead authorized his dad to do so.   Ultimately, the Appellate Division opined that “[i]ndirectly and through a third party, T.G. had L.G. followed, monitored, observed, and surveilled, by using adevice in violation of N.J.S.A. 2C:12-10(a).”

The Appellate Division then turned to harassment, which incorporated the same behavior from the above stalking, although not placement of the GPS itself. The statute guiding the predicate act of harassment is:

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

  • 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.

Here, the trial court found that while the GPS was not harassment as T.G. did not intend for L.G. to detect the device, he did use the information obtained from the GPS to intentionally harass, intimidate and try to trap L.G., as well as to cause alarm and serious annoyance.

As to the history of violence and need for protection, the trial court found L.G.’s testimony credible regarding her fear of T.G. and need for an FRO to “feel safe with her kids”, as well as the parties’ prior arguments including an incident when T.G. said to L.G. “do you know what one punch will do to your face?”, as well as the physical incident when T.G. pushed and pinned down L.G. and, as L.G. later testified, threw her phone against the wall.  T.G. had also demanded access to her phone and contacts.

When I said this opinion was thorough, I wasn’t kidding, but it’s important.  The takeaway here is to think twice about placing a GPS on a spouse’s vehicle.  This is especially true when the surveillance has no bearing on your underlying claims and is merely for personal knowledge.  It also doesn’t matter that you may feel aggrieved by your spouse for spending habits or similar reasons.  Remember, even your dad can’t get you out of this one.


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

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.

 

In the unpublished (non-precedential) recent case of N.G. v. N.B.G., the Appellate Court declined to enforce a provision in the parties’ Marital Settlement Agreement that permitted the parties to retain a Parenting Coordinator to resolve co-parenting issues, due to the existence of a Final Restraining Order  (I note that the FRO was in existence at the time the parties agreed to the language of their MSA).

The Court reasoned that although the pilot program appointing Parenting Coordinators was discontinued in New Jersey on November 26, 2012, the guidelines for the pilot program prohibited the appointment of a Parenting Coordinator in instances of a Temporary or Final Restraining Order pursuant to the Prevention of Domestic Violence Act.

The takeaway from this case is that before you negotiate certain provisions that you feel are instrumental to your divorce agreement, it is wise to consult with an experienced attorney to ensure that such provisions are not contrary to the public policy of our state.  In this case, someone did not get the benefit of their bargain.

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Lauren K. Beaver is an attorney in Fox Rothschild LLP’s Family Law Practice Group. Lauren practices in the firm’s Princeton, New Jersey office representing clients on issues relating to divorce, custody, parenting time, support and equitable distribution.  Lauren can be reached at (609) 844-3027 or lbeaver@foxrothschild.com.

 

If I were to tell you that the victim of domestic violence was put out of the marital home and the abuser was granted temporary custody of the kids, you would say I was crazy.  The Appellate Division would agree and in reported (precedential) decision released on October 19, 2012 in the case of J.D. v. M.A.D.(ironically), reversed such a holding by a Camden County trial court. 

In this case, the defendant’s discovery of the victim’s infidelity lead to an act of domestic violence.  The victim, however, wanted to remain in and work on the marriage.  The defendant wanted "space" and somehow convinced the victim to leave the home and sign a document giving him primary custody of the children.  The parties later reconciled and the victim returned to the house.  However, unable to control his anger over her affair, a number of additional acts of domestic violence occur ed, culminating with the entry of a TRO against the defendant.  At the Final Restraining Order hearing, the judge then entertained argument "as to who should have possession of the marital home and as to who should have
temporary custody of the children."  The trial judge decided that it should be the defendant, finding that the anger only occur ed when the parties were together and as such because the defendant had been the primary caretaker, he was awarded temporary custody and the victim was excluded from the marital home. 

The victim appealed and the Appellate Division reversed, holding:

The trial court’s findings, set forth in the beginning of this opinion regarding the events over the course of the seven months following defendant’s discovery of his wife’s extramarital affair, are supported by substantial credible evidence in the record and we do not disturb them. The facts as found, however, do not overcome the presumption embodied in N.J.S.A. 2C:25-29b(11), governing the court’s award of temporary custody
in a proceeding under the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, "that the best interests of the child are served by an award of custody to the non-abusive parent." Moreover, these facts cannot support an order granting exclusive possession of the marital home to the party the court has found to have perpetrated the abuse.

Continue Reading Perpetrator of Domestic Violence Cannot have the victim removed and get temporary custody of the kids, can he?

As family law practitioners who frequently represent parties in domestic violence actions, we are often confronted with clients who, having been the victim of domestic violence, seek to prohibit their spouse’s presence at any location where they will also be present. Until just recently, the law remained silent as to whether a restraining order could provide such broad prohibitions. On January 17, 2012, the legal silence ended by way of the matter of State v. S.K., Docket No. A-1488-10T1, which has been approved for publication and is, therefore, binding law upon the trial courts of our state. As established in S.K., a provision in a domestic violence restraining order that prohibits a defendant from “any other place where plaintiff is located” is not generally not enforceable as The Prevention of Domestic Violence Act does not authorize such non-specific restraints. N.J.S.A. 2C:25-17 to -35.

 

In addition to the more ‘common’ relief of barring defendant from plaintiff’s place of residence and employment, the final restraining order in S.K. went one large step further by prohibiting defendant from “any other place where plaintiff is located”. Over five years after the restraining order was entered, defendant attended the soccer game of the parties’ children at a local high school that plaintiff also attended. While plaintiff sat in the bleachers, defendant stood near the bleachers, watching the game. Upon seeing defendant, plaintiff telephoned the police and advised them that defendant was in violation of the final restraining order. At no time did plaintiff accuse defendant of communicating or contacting her in any way. No action was taken by the police at that time.

 

The day following the soccer event, plaintiff filed a “citizen’s complaint” against defendant for violation of the restraining order. In response, the police filed a formal complaint, charging defendant with “disorderly persons contempt” in violation of N.J.S.A. 2C:29-9b, as well as “petty disorderly persons harassment”, in violation of N.J.S.A. 2C:33-4a. Accordingly, defendant was arrested and processed and released from custody. Trial was held six months later, wherein the State offered defendant a plea agreement in exchange for serving no jail time. Defendant agreed to plead guilty to the contempt charge conditioned upon the State dismissing the harassment charge.

 

Finding in favor of plaintiff, the Appellate Court reversed plaintiff’s conviction and remanded to the trial court for dismissal of the complaint filed by the Sate and consideration of an appropriate amendment of the final restraining order to delete the invalid provision.

Continue Reading Enforceability of Domestic Violence Restraints That Prohibit a Defendant from Attending Any Location Where Plaintiff May Also Be Present

The times, they are a’changing – at least when it comes to how the judicial system approaches harassment as an act of domestic violence in light of advanced technology used for communication.  In the newly reported (precedential) Appellate Division decision of L.M.F. v. J.A.F., Jr., the Court addressed the use of electronic communications, specifically text messages, as a form of harassment.  Those claiming an act of harassment based on electronic communications might not like what the Appellate Division had to say, as detailed further below, but the decision provides a breadth of noteworthy language in shaping what is an extremely sound, rationale and common sense methodology to approach such cases in the future.

As a refresher, harassment is defined by New Jersey statute as follows:

[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.

Addressing the struggles faced by courts in addressing harassment as an act of domestic violence, the Appellate Division noted

The facts presented here exemplify the complexity of human interactions and the strain they place on the Family Part judges as they struggle to distinguish between the cases that merit judicial intervention and those that do not.

Further addressing such difficulties in the context of modern technology and the facts at issue, the Court first provided an online definition of “texting” from www.netlingo.com as:

[t]he act of typing and sending a brief, electronic message (less than 160 characters) via a wireless network to another person so that they can view the short message on any number of mobile or handheld devices.

Continue Reading The Use of Modern Technology as a Form of Domestic Violence – The Appellate Division Weighs In

Harassment under New Jersey’s Prevention of Domestic Violence Act can take on many forms, one of which, under a given set of facts and circumstances, can involve an individual placing a victim in fear of losing her job.  Recently we handled a matter where the defendant was contacting the victim’s employer and threatening to tell the employer very private details about the victim’s personal life.  Whether the victim would have actually lost her job was one thing, since, more importantly, she had a reasonable fear based on the defendant’s harassment that it would occur.

The facts in J.J. v. J.M. were relatively similar (as each case carries its own details and nuances), as the Appellate Division affirmed in this unpublished (not precedential) case that the defendant’s actions in placing his former girlfriend in fear of losing her job constituted harassment meriting issuance of a Final Restraining Order. 

Continue Reading Harassment Affirmed Where Former Girlfriend Feared She Would Lose Her Job

About a month ago, I blogged on a case that held that putting a GPS in a spouse’s car was not an invasion of privacy because cars travel on public roads and there is no expectation of privacy.  That said, invasion of privacy is a tort so this case really did not address the domestic violence/stalking implications of the conduct.  In fact, at the end of the post, I said:

Now, should people going through a divorce take this as a green light to start placing GPS devices in their spouse’s vehicle. Perhaps not. There have been some that have argued and some judges have found that that conduct would amount to domestic violence – perhaps harassment or stalking. Of course, that begs the question of how the alleged victim could demonstrate the requisite fear or be alarmed, if the did not know of the placement of the GPS and similarly, how it would be stalking if the person did not know that the GPS was recording their movements.  I have no doubt that there will be more to come on this.

 

Little did I know that more was going to come so soon.  That is, until I read L.J.V.H. v. R.J.V.H., an unreported Appellate Division opinion decided yesterday.  In that case, the court found that the putting a GPS device in an ex-wife’s new boyfriend’s car was stalking and thus domestic violence. 

Apparently, this was not the defendant’s first foray into the use of a GPS.  At the commencement of the original divorce a year prior, the defendant had put a GPS on the wife’s car.  She obtained a TRO which was ultimately resolved by a consent order in the divorce case for restraints, including restraints on stalking.

 

Continue Reading So Maybe Using a GPS is Domestic Violence After All

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