A Recent Domestic Violence Case Synopsis
J.M.R. v. J.L.
Docket No. A-2798-11T1
Overview
Plaintiff Appeals denial FRO against Defendant. The Court reverses finding Plaintiff satisfied the predicate act of harassment and finding the order necessary for protection.
Facts
- The parties dated for 3 years. A TRO was given based on criminal mischief and harassment. The complaint alleged prior history of domestic violence, citing six assaults. Both parties testified and witnesses testified as well. She testifies as to the assaults, which the police were called for many of them, but never requested a TRO. The incidents include, pulling her out of the shower and then down the stairs, twisting her arm, verbal abuse, tackling he, and pushing her to the ground.
- She asked for her cable box back and he threw her out of the front door, she tore a ligament in her foot and fractured her foot. The police were called and they got the box back, but she did not file for a TRO. The 6thassault, she documented her injuries with 7 photos. Bruises to her arms and wrists. She never applied for a TRO for the all 6 assaults.
- Defendant, on 2 occasion filed for a TRO against Plaintiff. Plaintiff filed for a TRO, which resulted in both parties dropping their complaints if they had no contact. This occurred in October 2011. Defendant immediately began harassing Plaintiff after this.
- November 8, 2011 Defendant dropped an index card in Plaintiff’s backyard that contained her online passwords and accounts. She kept this under keyboard. She never gave it to Plaintiff, nor did she ever give him permission to access her accounts. Plaintiff had been having trouble with her accounts from June 2011 to November 2011. She felt “so violated.”
- Plaintiff advised court expressly, that the FRO was necessary because she feared for her life and feared future abuse. Characterizing Defendant as dangerous and having no conscience. Plaintiff moved out of her home, which was adjacent to Defendants, because she did not feel safe.
- Trial Court found harassment for dropping the index card on Plaintiff’s property because it was done for the purpose of annoying or alarming plaintiff. Also finding the FRO unnecessary because she lived in Maryland (visiting father and intended to move back to NJ), did not live near each other, the couple was no married, owned no property together, no children, and should be able to “move on”.
Issue
Was the FRO necessary for the protection of Plaintiff?
Holding
Yes. The Plaintiff showed a past history of domestic violence and coupled with many other factors, showed she was not safe.
Rule
The judge must take into account the previous history of the domestic violence between the parties and whether immediate danger to the person or property is present.
Of Note
In reversing and remanding for entry of a FRO, finding it significant that the violence resumed on the very first night of the parties “reconciliation,” and after the defendant had made assurances he would not engage in further acts. See S.D. v. M.J.R., 415 N.J. Super. 417, 440 (App. Div. 2010). Here, the harassment did not occur the very next day, however it did occur within a month of the mutual dismissal of cross-TRO’s and the voluntary agreement not to have any contact.
Analysis
The judge’s determination was conclusory and not based in the facts, ignoring the Plaintiff’s testimony and the pictures. The judge’s silence on the issue does not credit defendant’s general denial of any physical violence. No credibility determination was made by the judge for either party. It is also of note that the Defendant began harassing Plaintiff “shortly on the heels” of the October 17, 2011 mutual dismissal of the cross TRO’s. Silver does not require defendant to live next door to defendant or even reside in the same town, so the Judge considering that was in error.
Standard
A judge considering a complaint for a domestic violence restraining order has a “two-fold” task: (1) the judge must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set for in N.J.S.A. 2C:25-19a has occurred and (2) whether a domestic violence retraining order is necessary to protect a plaintiff from immediate danger or further acts of domestic violence.Silver v. Silver, 387 N.J. Super. 112, 126, 128 (App. Div. 2006) Whether a restraining order should be issued depends on the seriousness of the predicaete offense, see Cesare, supra, 154 N.J. at 402, on “the previous history of the domestic violence between the plaintiff and the defendant including previous threats, harassment and physical abuse, and on whether immediate danger to the person or property is present.Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995). See also, Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995); N.J.S.A 2C:25-29(a).
