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?
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.
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 firstname.lastname@example.org.