Docket No. A-3319-21
Decided September 7, 2023
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished opinion, the Appellate Court of New Jersey decided plaintiff’s appeal from the trial court’s denial of a final restraining order (FRO), claiming the trial court erred in determining plaintiff failed to prove the predicate acts of harassment, terroristic threats, or stalking pursuant to Prevention of Domestic Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to 35, and failed to prove the threat of imminent future harm or risk of future abuse pursuant to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006).
The parties were in a romantic relationship from June 2019 through August 2021. Plaintiff vacated defendant’s apartment in August 2021 while pregnant with their son. A temporary restraining order (TRO) was granted on March 25, 2022. The complaint was later amended on May 6, 2022, which alleged a violation of the TRO by defendant when he sent plaintiff money through a third-party application. The trial court conducted a hearing on May 10, 2022. The court denied the FRO and dismissed plaintiff’s TRO. The trial court then denied plaintiff’s motion for a stay of the dismissal of the TRO pending appeal. Defendant did not oppose plaintiff’s motion. The Appellate Court granted plaintiff’s motion for a stay and reinstated her TRO pending the outcome of her appeal.
At the FRO trial, plaintiff testified that she wasn’t comfortable being alone with defendant during prearranged visitation with their infant son and wanted family members present when visitation occurred. On March 25, 2022, defendant sent plaintiff 17 argumentative text messages, in which he called her obscene names because he did not want family members present when he visited the child.
In the weeks preceding the entry of the TRO, defendant called and texted plaintiff numerous times, one day even totaling 50 times asking for his password and login information for online accounts she had previously given him before moving out.
Plaintiff and defendant also have a history of domestic violence, as plaintiff testified defendant took her wallet and phone after she refused to buy him marijuana. When plaintiff tried to retrieve the items, he strangled her until she fell to the floor. Plaintiff further testified she did not call the police at that time out of fear defendant would hurt her again because he had threatened to kill her.
The trial court found both plaintiff and defendant credible. The court indicated that defendant generally did not deny the allegations levied by the plaintiff, and that he specifically admitted to having choked the plaintiff in 2021.The court also found plaintiff failed to prove terroristic threats, stalking, or harassment. Specifically with respect to harassment, the trial court stated plaintiff failed to prove “a continuing course of alarming conduct” because defendant’s purpose in calling and texting her over fifty times on March 1 was to obtain the passwords to his online accounts. Additionally, regarding the March 25 communications between the parties, the court found defendant did not intend to harass because he “had a reason for calling.”
After reviewing the trial court record, including defendant’s admissions and the trial court’s credibility findings, the Appellate Court ultimately concluded that the trial court misapplied the law when it found plaintiff did not prove harassment because defendant’s intention on March 1 was to obtain his passwords and his intention on March 25 was to “discuss” the terms of visitation. The Appellate Court also found that the trial court also misconstrued the law when it found plaintiff failed to prove a course of conduct pursuant to the statute. Furthermore, the court determined that there was insufficient evidence to support the finding that defendant’s primary purpose on March 1 was to obtain passwords for his online accounts. That finding was inconsistent with the testimony at trial. Thus, the court determined there was no credible evidence supporting the finding that plaintiff did not prove harassment. As a result, the Appellate Court vacated the order denying the FRO and remanded the case for a new trial before a different judge. The TRO was to remain in place until a new order is entered following the trial on remand. At the new trial, the trial judge shall consider the evidence and testimony from the first trial, including defendant’s admissions.
At Hark & Hark, we are experienced attorneys who represent clients for appeals in Superior Court for issues like the previously discussed case pertaining to FRO trials. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.
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