The Legality and Appropriateness of Entering A FRO, And of Awarding Counsel Fees and Punitive Damages

Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.

After the conclusion of a six month trial, defendant appealed the entry of a June 20, 2019 final restraining order (FRO) pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Defendant also appealed the judge’s November 18, 2019 reconsideration decision awarding plaintiff G.D. $31,978 in counsel fees and $4,000 in punitive damages. Which the judge awarded pursuant to N.J.S.A. 2C:25-29(b)(4) which authorizes punitive and compensatory damages for acts of domestic violence.

Over the course the trial, both parties introduced many text messages and emails that clearly supported the judge’s finding that the parties had a “volatile” relationship. At trial, plaintiff testified that defendant appeared at her home shortly after she had dismissed a TRO against him. Plaintiff did not want to speak to defendant in front of her children and agreed to speak to defendant in his vehicle. However, defendant drove off and refused to allow plaintiff to get out. Defendant drove to his residence, where plaintiff testified that she struggled to escape, but defendant tripped her and told her that she would die that night. Plaintiff fled to a neighbor’s house, who called police. Plaintiff also described two prior incidents of physical abuse committed by defendant. Defendant called three police officers as witnesses, all of whom corroborated plaintiff’s testimony. Plaintiff’s orthopedic surgeon further testified that plaintiff suffered a PCL and LCL tear during her altercation with defendant, which required surgery to treat. The surgeon testified that plaintiff’s injuries were consistent with how she described her altercation with defendant.

The trial court rendered a judgment imposing a FRO on defendant and awarding plaintiff legal expenses and punitive damages. The trial court found plaintiff to be credible and the predicate incident to be a pattern of “escalating” violence by defendant. The trial court held that the incident resulted in pain to plaintiff and therefore constituted the predicate acts of assault and harassment. The trial court further found that defendant’s conduct displayed the requisite “evil mindedness or bad motive” to support the award to plaintiff.

On appeal, the court affirmed the trial court’s judgment. Although the court agreed with defendant that testimony regarding the neighbor’s statements to police was hearsay, it ruled that it fell under the excited utterance exception. The appellate court further ruled that admission of plaintiff’s medical expert testimony was not an abuse of discretion because when joined with her testimony, the medical proofs established a violation of the Act which warranted issuance of the FRO by a preponderance of the credible evidence. The Act authorizes the judge’s award of counsel fees pursuant to N.J.S.A. 2C:25-29(b)(4), and the appellate court believed the trial court judge did not abuse his discretion in awarding them. Similarly, the Act authorizes the judge’s award for punitive damages pursuant to N.J.S.A. 2C:25-29(b)(4). Awarding punitive damages is appropriate where a court finds that the actor’s conduct was motivated by “actual malice or accompanied by a wanton and willful disregard of persons who foreseeably might be harmed by those acts or omissions.” N.J.S.A. 2A:15-5.12(a). In this case, the appellate court did indeed find this, and believed the trial court judge did not abuse his discretion in awarding them either and affirmed their decision.

At Hark & Hark, we represent clients for appeals in Superior Court for issues like the present case pertaining to the legality and appropriateness of entering a FRO, and of awarding counsel fees and punitive damages to the opposing party in the case. We work hard to ensure that our clients receive exceptional representation so that they receive the most favorable outcome as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, 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, Essex, Gloucester, Mercer, Ocean, and Salem counties.