New Jersey Final Restraining Order Reversed on Appeal As Record Did Not Contain Adequate Facts For Assault
Docket No. A-2337-22
Decided June 4, 2024
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey reversed and vacated a final restraining order (FRO) against defendant after a review of the record failed to support a finding of assault or a need to protect the plaintiff from future acts of domestic violence.
In F.K. v. C.B., Plaintiff testified the parties were married in 2018 and had three small children. She stated after defendant came home from work on December 12, 2022, he pushed her in the hall. She was not injured. She also said he “pulled” her. According to plaintiff, defendant had made statements at an undefined time asking her not to leave him and that he would kill her. The court permitted plaintiff to play a one-minute video to support her allegation. The only discernible words on the video were plaintiff saying, “[K]ill me or shoot me.” Defendant was not speaking English in the video. Nevertheless, the court accepted plaintiff’s representation of what defendant was saying. Plaintiff also stated she had more evidence on another phone, but defendant had taken that phone from her.
After the court asked plaintiff why she “file[d] for a restraining order,” she said, “Because he abandoned me with the kids; leave me in the house.” Plaintiff later stated she and defendant were both working and continued to both pay the mortgage on the home.
During the hearing, the court asked plaintiff: “So you’ve been assaulted by . . . defendant on numerous occasions?” She replied: “Yes, sir.” When plaintiff said defendant was out of the house, the court asked: “You just want him to stay out of the house?” Plaintiff responded “Yes.”
In its oral decision issued at the close of the thirty-five-minute hearing, the court stated:
The question is one of credibility. Whether there’s continuing annoying conduct, whether there is assaultive behavior. I find that there was assaultive behavior. I find that the plaintiff is a very credible witness. She described the situation adequately, appropriately, in a credible fashion. I find that she’s been assaulted, that the defendant took her cell phone. . . . [B]ut clearly I find that there was . . . abusive behavior, the abusive behavior continues, and that . . . plaintiff is entitled to a[n FRO].
The court did not discuss the final order in any respect with defendant.
Defendant appealed and the Appellate Division reversed the FRO. The Appellate Division found the Trial Court’s finding of “assaultive behavior” was not a predicate act. Analyzing the predicate act of assault, the Appellate Division could not find that the testimony provided to the Court supported assault, as plaintiff indicated she was not injured. What’s more there was no information provided whatsoever regarding her need for the restraining order to continue to prevent future acts of domestic violence.
Final restraining orders have severe consequences in New Jersey. In order to have a Temporary Restraining Order converted to a Final Restraining Order, the plaintiff must show the parties have a requisite relationship under the Prevention of Domestic Violence Act, the defendant perpetuated a predicate act of domestic violence, and the restraining order is necessary to the plaintiff to prevent future predicate acts of domestic violence by defendant. If any one of these three things is not proven by plaintiff by a preponderance of the evidence, the restraining order will be dismissed.
If you have questions about final restraining orders, temporary restraining orders, parenting time, alimony, child support, divorce, custody, or appeals, contact the experienced domestic violence attorneys at Hark & Hark today.
In recognition of these trying financial times, we are reducing fees and working with clients to come up with manageable payment plans. Initial consultation is always free and we are available remotely.
We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing domestic violence charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic, Burlington, Camden, Cape May, Cumberland, Gloucester, Mercer, Monmouth, Ocean, and Salem counties. We represent clients in all towns in New Jersey, including Bass River, Beverly, Bordentown City, Bordentown Township, Burlington City, Burlington Township, Chesterfield, Cinnaminson, Delanco, Delran, Eastampton, Edgewater Park, Evesham, Fieldsboro, Florence, Hainesport, Lumberton, Mansfield, Maple Shade, Medford Lakes, Medford Township, Moorestown, Mount Holly, Mount Laurel, New Hanover, North Hanover, Palmyra, Pemberton Borough, Pemberton Township, Riverside, Riverton, Shamong, Southampton, Springfield, Tabernacle, Washington Township, Westampton, Willingboro, Woodland Township, and Wrightstown.
