Case Brief: M.C.S. v. J.C.K., 2021 WL 2010654

Unpublished Opinion; Shall not constitute precedent or be binding upon any court

Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.

Parties:              

Plaintiff: M.C.S.
Defendant: J.C.K.

Proc. Hist.:         Trial Court granted plaintiff’s request for a FRO under the Prevention of Domestic Violence Act, based on the predicate acts of harassment, and simply assault by physical menace.  Defendant appealed challenging the trial judge’s conclusion the plaintiff satisfied both prongs of the Silver test; and further contends the judge impermissibly assisted plaintiff, leading her to testify about prior incidents that were not alleged in the complaint, thereby violating his right to due process.

Facts:                  Parties were in an “on and off” style relationship for a period of two years.  The relationship began in the summer of 2018 while defendant was married to another woman and resided in PA about two-hours from plaintiff’s apartment.  In July 2019 defendant sent a video of him smashing gifts he received from the plaintiff with a hammer.  In early autumn 2019, defendant texted plaintiff threatening to “message her work” if she “didn’t pick up the phone or if she didn’t explain to him why she had slept with someone else when they weren’t together.”  In December 2019, defendant began messaging and friend requesting other men whom plaintiff followed on social media.

Several other acts took place throughout 2020 culminating in the ending of the relationship in May 2020.  The following month, June 8, defendant called and messaged plaintiff repeatedly.  Dissatisfied with plaintiff’s non-responses, defendant knocked on her apartment door around 11:00 a.m., “unannounced and uninvited,” without utilizing her building’s buzzer system.  Observing defendant through the peephole and without opening the door, plaintiff asked defendant to leave, but he refused.  After a couple of minutes, defendant agreed to meet plaintiff in “public” by his vehicle.  When plaintiff opened the door, defendant jumped out from the side of the hallway and shoved plaintiff using the force of his body to enter the apartment.  Plaintiff’s friend and off-duty police officer, S.P., was inside and separated the parties.  Defendant was “screaming” and insulting the plaintiff.

Plaintiff filed a domestic violence complaint that evening, alleging defendant committed the offenses of burglary, harassment, and assault.

Issue:                  Did the trial court err in granting plaintiff’s request for an FRO?  Did it abuse defendant’s due process rights?

Holding:              The trial court did not err in granting plaintiff’s request for an FRO, nor did it abuse defendant’s due process rights.

Rule:                    FRO ISSUE:
The entry of an FRO requires the trial court to make certain findings, pursuant to a two-step analysis set forth in Silver, 387 N.J. Super. At 125-27.  Initially, 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.” Id. at 125.  The trial court should make this determination in “light of the previous history of violence between the parties.” Id. quoting Cesare, 154 N.J. at 402).  As long as the court “at least considers the factor in the course of its analysis it is not obligated to find a past history of abuse before determining that an act of domestic violence has been committed in a particular situation.” Cesare, 153 N.J. at 402.

Secondly, the court must determine whether a “restraining order is necessary, upon evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to 29(a)(6), to protect the victim from an immediate danger or to prevent further abuse.” Silver, 387 N.J. Super. At 127.  Those factors include but are not limited to “the previous history of domestic violence between the parties including threats, harassment, and physical abuse.

DUE PROCESS ISSUE:

Pursuant to N.J.R.E. 614(b) a  court may examine a witness regardless of who calls the witness.  The court must avoid questioning witnesses in a manner prejudicial to the opposing party.  State v. Taffaro, 195 N.J. 442, 451 (2008).  In the context of domestic violence trials, especially with pro se litigants, a court’s questioning of witnesses should be done in an “orderly and predictable fashion, and not at the expense of the parties’ due process rights.” Franklin v. Sloskey, 385 N.J. Super. 534, 543 (App. Div. 2006).

Reasoning:         FRO ISSUE:

Trial judge examined the history of the relationship of the parties and found the defendant evidenced “classic issues of power and control in this situation where there’s domestic violence, where one party wishes to exercise physical control over another party.”  After an analysis of the pattern of abuse by defendant the Appellate Division affirmed trial judge’s decision because defendant’s conduct constituted a “pattern of abusive and controlling behavior” which is “a classic characteristic of domestic violence.” Silver, 387 N.J. Super. At 128.

DUE PROCESS ISSUE:

In this case the trial judge did not base their decision to issue an FRO solely on other accusations not listed in the complaint, ignoring the sole reason the order was sought in the first place.  Instead, the judge considered the totality of the circumstances and decided defendant’s action at plaintiff’s apartment June 2020 constituted harassment.  The reference to prior harassment reports in the TRO – coupled with copies of text messages exchanged by the parties on the day of trial without objection – provided fair notice the plaintiff would testify to defendant’s prior harassing conduct.

Disposition:       Affirmed.