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 N.K (wife - plaintiff) and A.D. (husband - defendant) were married in 2013. They have one child, a son, who was three years old at the time of trial.

At the time of the subject incident the parties had begun a divorce proceeding - which involves a contentious custody claim - but they were still living together. 

On December 8, 2022, the husband came into the room while she was preparing their child for daycare, and an argument ensued. She left the room, and he followed her around the house. He then came within close proximity to her, and she asked him to leave. After returning to the room, she closed the bedroom door and locked it. He was angry and shouted at her to open the door, which she refused to do. After banging on the door, he picked the lock with a hanger and broke open the door. This back-and-forth behavior continued two more times. At that point the cops were called to intervene.

The wife filed an application in New Jersey Superior Court in Middlesex County seeking a Final Restraining Order.

At the trial, in addition to recounting the above incident, the woman also testified that in May 2022 her husband grabbed her hair, and put his hand around her neck; and in October 2022 her husband entered the bedroom at 1:30 a.m., and woke her up to continue an argument. 

The husband denied many of the past incidents she testified to.

The judge did not find either party particularly credible but agreed with the wife that using a hanger to gain access to the room where she was was indeed a predicate act of harassment.

As to the second prong of Silver, whether an FRO was necessary for the protection of plaintiff, the judge concluded that the alleged two prior instances of domestic violence satisfied the second prong of the Silver analysis.

The court issued an FRO against him and in favor of her, granting her exclusive possession of the marital residence and temporary custody of the parties' child. The court directed him to pay his share of daycare costs, utility and mortgage expenses. The court also maintained the parties' parenting time schedule.

Subsequently, the man, now represented by a new attorney, filed a motion for reconsideration, contending his prior attorney failed to produce two audio recordings of the incident on December 8, 2022, which countered the woman's assertions. He urged the court to reconsider its decision to issue an FRO because the court's findings were unsupported by the trial testimony.

The judge did not permit him to play the recordings, nor did the judge listen to the recordings prior to ruling on the motion. The judge found the recordings were not "new" evidence because they had been available at the time of trial. Therefore, the judge denied the motion for reconsideration.

In a written decision just released, Appellate Division Judges Firko and Augostini just reversed the lower court's ruling.

In evaluating the totality of the circumstances, the court must exercise care to "distinguish between ordinary disputes and disagreements between family members and those acts that cross the line into domestic violence." R.G. v. R.G., 449 N.J. Super. 208, 225 (App. Div. 2017). A trial court must be particularly vigilant in situations where domestic violence allegations arise in the context of the dissolution of a marriage or long-term partnership because as we underscored in Peranio, "the fact of the matter is that the dissolution of a marriage is rarely a happy event. All parties suffer and even the most rational are hard pressed to avoid any emotional encounters." Peranio, 280 N.J. Super. at 56.

Regarding the finding of the predicate act of harassment, the trial referred to defendant's conduct of repeatedly using a hanger to break into plaintiff's room as an attempt to "annoy and alarm plaintiff." 

Harassment is often the most challenging for a trial court to discern. "[A] party's accusation that another's actions are 'harassing' [may be] vague and conclusory, making it particularly difficult for a trial court to discern on which side of the line running between domestic violence and ordinary 'contretemps' a particular act properly falls." J.D., 207 N.J. at 482.

A finding of harassment requires proof of an intent or purpose to harass. State v. Hoffman, 149 N.J. 564, 576-77 (1997). "'A finding of a purpose to harass may be inferred from the evidence presented' and from common sense and experience." D.M.R. v. M.K.G., 467 N.J. Super. 308, 323 (App. Div. 2021) (quoting H.E.S. v. J.C.S., 175 N.J. 309, 327 (2003)). "Although a purpose to harass can be inferred from a history between the parties . . . that finding must be supported by some evidence that the actor's conscious object was to alarm or annoy; mere awareness that someone might be alarmed or annoyed is insufficient." J.D., 207 N.J. at 487. 

The court recognized that "[i]n circumstances like [these], oftentimes we have one party saying something happened and the other party saying it didn't happen." Thus, credibility was key to the findings made by the court. However, in this case, the court did not find either party particularly credible. We are unable to discern based upon the court's lack of specific findings, whether the court correctly concluded defendant committed the predicate act of harassment.

As to the second Silver factor, the court found the prior incidences of "waking up in the middle of the night, pulling the hair, [and] putting the hand on the throat" led the court to "believe that the plaintiff needs to have [an FRO] in order to protect herself from those type[s] of actions by . . . defendant." 

We are unable to discern what, if any, weight the court gave this factual assertion in its analysis of the need for an FRO under the second prong of Silver, and whether, without this fact, the court would have concluded that "a restraining order [was] necessary to protect plaintiff from future danger or threats of violence." D.M.R., 467 N.J. Super. at 322 (citing Silver, 387 N.J. Super. at 126-27) Thus, we conclude that the court erred in its determination that plaintiff had satisfied the second prong of Silver; namely, that plaintiff had proven that a restraining order was necessary to prevent immediate harm or further acts of abuse.

As to the motion for reconsideration, a trial court's reconsideration decision will not be disturbed unless it represents a clear abuse of discretion. Hous. Auth. of Morristown v. Little, 135 N.J. 274, 283 (1994)). "An abuse of discretion 'arises when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Pitney Bowes Bank, 440 N.J. Super. at 382 (quoting Flagg v. Essex Cnty. Prosecutor.

 

Here, the court correctly noted that the audio recordings, which defendant sought to introduce, were not "new evidence." However, other than noting that the recordings were not "new evidence," the court failed to explain why it would not permit defense counsel to play the recordings or why the court did not listen to them prior to ruling. Thus, the court erred in not, at a minimum, considering this evidence, which recorded the parties' interactions during the incident on December 8, 2022. Such evidence may have given the court further context in which to evaluate the parties' relationship and their credibility. We conclude the court abused its discretion by not considering this evidence and "undertak[ing] a second review of the evidence and facts presented . . . ." Pitney Bowes Bank, 440 N.J. Super. at 383. 

Accordingly, because the court made credibility findings and the recordings may have impacted the court's final determination in this matter, we reverse, vacate the FRO and reinstate the TRO of December 8, 2022, pending a new FRO trial.  Because credibility determinations were made, the FRO hearing on remand must be heard by a different court. See Freedman v. Freedman, 474 N.J. Super. 291, 308 (App. Div. 2023).

The winning attorney is Marisa Lepore Hovanec Esq. of Hovanec & Divito, LLC.

This ruling comes following additional rulings (here and here) making it clear that restraining orders can only be granted for "acts that cross the line into domestic violence" and not for "ordinary disputes and disagreements between family members," and more pertinently, that restraining orders are not to be used to force the spouse to vacate the marital home simply to gain leverage in beginning a divorce process.

Additionally, as previously reported here on FAA News, the Appellate Division recently gave a huge N-O to seeking restraining orders simply as an attempt to alienate parents from their children.

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