Docket No. A-4331-10T2
The defendant appeals from and Order finding that he committed acts of domestic violence, specifically, stalking, harassment, and trespass during the fall of 2010, for which the entry of a FRO for the prevention of domestic violence was entered under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 et seq.
On appeal, defendant raises the following points:
- Defendant did not have the requisite purpose to harass or stalk as found by the trial court and the court erred by finding such under the evidence presented and the totality of the circumstances shown at trial.
- The greater weight of the objective credible evidence showed that plaintiff was not in fear of defendant and therefore plaintiff was not entitled to a final restraining order.
- The evidence did not support a finding of criminal trespass as defendant had legitimate purposes to be at the marital home.
- The court erred by relying upon hearsay statements admitted at trial which were prejudicial to defendant.
- Under the PDVA, “acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present. N.J.S.A. 2C:25-29a(1) and (2).” Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995).
- Therefore, the commission of one of the predicate acts of domestic violence does not “automatically mandate[ ] the issuance of a domestic violence restraining order.” Silver v. Silver, 387 N.J. Super. 112, 123 (App. Div. 2006) (quoting Kamen v. Eagen, 322 N.J. Super. 222, 227 (App. Div. 1999)). Rather, the court must make a discretionary determination based on the predicate act of domestic violence, any prior history of domestic violence, and any other relevant circumstances, as to “whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence.” Id. at 128.
The Appellate Court’s review of the lower court’s determination is limited to deciding whether it constituted an abused of discretion. Cesare v. Cesare, 154 N.J. 394, 416 (1998). The Court was satisfied that no such abuse of discretion by the judge occurred. The record established that defendant repeatedly placed himself in a position to be in face-to-face contact with plaintiff when he had agreed to not to do so during his appearance before the court. This agreement was later memorialized in an ordering.
Shadowing plaintiff, although not direct face-to-face contact, had the same effect. Further, delivering food to the doorstep of the former marital home, on a non-parenting evening and when no such request for food had been made, not only evidenced defendant’s purpose to harass plaintiff, but also established his presence on the property without a right or privilege to do so. It is clear by the language of the order that the intent and spirit of the order was that defendant was not to be at the marital premises for any purpose outside of the provisions set forth in the order.
The court was satisfied that the judge first found that the predicate offenses under PDVA were committed and also found that an FRO was necessary to protect plaintiff from future acts of domestic violence. Therefore, the court did not view the judge’s additional comment that the order would facilitate the plaintiff’s ability to seek immediate relief in the even of a violate of the order as the basis for its conclusion that an FRO should be issued, but a recognition that such consent orders, often typical in matrimonial actions, are not a substitute for restraining orders issued pursuant to the PDVA and therefore ineffective where acts of domestic violence have occurred and immediate relief is sought.