RESTRAINING ORDERS ARE NOT TO BE USED SIMPLY TO GAIN LEVERAGE IN A DIVORCE, NJ APPELLATE COURT WARNS

Restraining orders are court orders which are designed when immediate protection from an abuser is necessary.

Established case law of Silver v. Silver requires that Final Restraining Orders may only be granted when courts find by a preponderance of the evidence (meaning “more likely than not”) that the defendant perpetrated a predicate act of domestic violence as defined by the Prevention of Domestic Violence Act. Additionally, the court must find that the defendant poses an immediate or future danger to the plaintiff and that a restraining order is necessary in the first place to protect the victim.

Unfortunately, oftentimes, spouses of a deteriorating marriage file for a restraining order simply as a way to gain leverage in beginning a divorce process, as restraining orders can force the spouse to vacate the marital home.

The New Jersey Appellate Division just gave a huge N-O to such practices, making it clear that that's not the purpose of a restraining order - which can only be granted with cause.

The parties - revealed in court records only as S.Y.R. (wife - plaintiff) and R.R. (husband - defendant) were married for approximately thirteen years and share three children, born in 2016, 2019, and 2022. On December 22, 2021, plaintiff filed a complaint for divorce. On March 22, 2022, plaintiff sent defendant a text message asking him to move out of the house. Defendant did not move out, and instead filed an answer to the complaint on April 5, 2022. At ten o'clock that evening, plaintiff filed in New Jersey Superior Court in Ocean County for a Temporary Restraining order (TRO), which was granted, requiring defendant to move out of the marital home.

The TRO claimed defendant harassed plaintiff on two occasions: one in May 2021, and another in October 2021, because he repeatedly asked her to have sexual relations with him, and because of a series of unrelated incidents between the parties. She claimed one of the sexual incidents resulted in the conception of the parties' third child, which plaintiff did not want. On May 26, 2022, after a final hearing where both parties were represented by counsel, the court denied defendant's motion for a directed verdict and granted a Final Restraining Order (FRO).

The husband appealed the issuance of the FRO.

Judges Gooden Brown and Berdote Byrne agreed and now vacated the FRO.

The judges reviewed the guidelines established by Silver v. Silver:

When determining whether to issue a FRO pursuant to the PDVA, a trial court must make two distinct determinations. First, the court must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a) has occurred. If a court finds a predicate act has occurred, the judge must determine whether a restraining order is necessary to protect the plaintiff from future danger or threats of violence. Although this second determination - whether a domestic violence restraining order should be issued - is most often perfunctory and self-evident, the guiding standard is whether a restraining order is necessary, upon an evaluation of the factors to protect the victim from an immediate danger or to prevent further abuse." N.J.S.A. 2C:25-29(a) provides "the court shall consider but not be limited to" six factors, including the previous history of domestic violence between the parties.

The court must determine, pursuant to the totality of the circumstances, whether the FRO is necessary to protect the victim from an immediate danger or to prevent further abuse.

With respect to the predicate act of harassment, N.J.S.A. 2C:33-4 requires the perpetrator act "with [the] purpose to harass another." Such a finding "may be inferred from the evidence presented" and "[c]ommon sense and experience may inform that determination." State v. Hoffman. It may also be inferred from the parties' history. J.D. v. M.D.F.

During the FRO hearing, plaintiff repeatedly referred to the two incidents as "sexual assaults," although the TRO alleged only harassment and she admitted she acquiesced to sexual relations on both occasions. She testified on those two occasions she "just gave in." Plaintiff testified no physical force was used and defendant did not restrain her in any way. She testified this conduct had gone on during their approximately thirteen-year marriage but did not testify the conduct had continued after she filed for divorce in December 2021.

With respect to the delay in seeking a TRO, plaintiff testified she waited so long, from May and October 2021, until April 2022 because she did not have anyone to help with the children if defendant moved out of the marital home, and because she did not know somebody requesting sexual relations several times would qualify as sexual assault. She denied her filing was related to defendant's filing of an answer to the divorce complaint, despite seeking a TRO hours after the answer was filed. 

Plaintiff also testified to a series of unrelated incidents, none of which were proximate in time to the filing for a TRO. She testified as to a disagreement over a box she tried to open and defendant asked her to hand to him; an incident where defendant took her cell phone from her briefly; an incident where she and the children were watching television, and defendant came into the room and changed the channel although the children were watching the program; an incident where defendant followed plaintiff in his car to a shopping center, then gave her their son and told her she needed to take him; and an incident where one of the children had fallen asleep in the car, causing plaintiff to continue driving, and causing defendant to call her to ask where she was and whether she was well. She also testified during the course of their marriage defendant had taken a few photographs of her while she was sleeping in bed. Finally, plaintiff testified as to an incident between defendant's mother and one of the children resulting in a mark on the child's arm. Although she stated she did not believe defendant had anything to do with the child being scratched, she stated this made her angry because it happened on defendant's "watch." Plaintiff testified this was the triggering event for her that caused her to believe a restraining order was necessary.

Defendant testified the parties were discussing divorce in 2021, and attended marital counseling, where they were counseled to engage in intimate relations to repair their marriage. He admitted he requested sex from plaintiff on numerous occasions but testified he never proceeded unless she consented.

The trial court found plaintiff established the predicate act of harassment and concluded plaintiff relented and acceded to defendant's multiple requests for sex to stop the harassment. It found plaintiff credible, although extremely emotional, and accepted her testimony that her delay in filing for a restraining order was caused by her lack of awareness of her rights. Although terming defendant's conduct as "requests," and without addressing defendant's purpose in asking plaintiff for sex, the trial court found the predicate act of harassment because it believed plaintiff's testimony that she did not want to conceive. 

However, the trial court did not address the distinction between harassment and marital contretemps, see R.G., (noting the "Supreme Court has emphasized the care a trial court must exercise to distinguish between ordinary disputes and disagreements between family members and those acts that cross the line into domestic violence" and there must be evidence of an improper motive); see also, Murray v. Murray ("We are concerned, too, with the serious policy implications of permitting allegations of this nature [sexual rejection] to be branded as domestic violence and used by either spouse to secure rulings on critical issues such as . .. exclusion from the marital residence . . . particularly when aware that a matrimonial action is pending or about to begin."). The trial court's failure to make findings distinguishing the evidence presented from marital contretemps requires remand, particularly given the pending matrimonial action.

Additionally, after acknowledging that a finding of a predicate act does not automatically lead to the entry of an FRO, and the court was required to make specific findings pursuant to the second prong of Silver, it failed to make those requisite findings.

The trial court failed to state the reasons a FRO was necessary pursuant to the totality of the circumstances to prevent imminent future harm or risk of future abuse, including whether a FRO was necessary when the conduct alleged was distant in time.

Therefore, "the final restraining order is vacated," the Appellate Division judges concluded.

Adam W. Toraya Esq. of Bailey & Toraya, LLP is the winning attorney.

Attorney Brian D. Winters Esq. of Keith, Winters, Wenning & Harris represented the wife - plaintiff.

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