FAMILY LAW | EVIDENCE | CRIMINAL LAW A.M. v. M.P., N.J. Super. App. Div. April 15, 2000
Submitted by Domestic Violence Lawyer, Jeffrey Hark.
Defendant appealed from an amended final restraining order under the Prevention of Domestic Violence Act, in favor of plaintiff after the trial judge concluded that defendant’s conduct, which consisted of sending plaintiff a series of vulgar and insulting text messages, constituted harassment And as a result and as a result entered a final restraining order. (FRO)
The court found however, that the trial judge did not make the factual findings required by Silver v. Silver. Specifically, although the trial court found that the predicate act of domestic violence existed in the form of harassment, the court did not perform an analysis as to whether there was a current and existing threat of violence coupled with the predicate act of domestic violence. The appeals court remanded the case to the trial judge for reconsideration and additional factual findings. The court further ruled that due to the amount of time that had elapsed since the FRO hearing, the trial judge could, in his discretion choose to hear additional testimony from the parties before making the additional findings on remand.
A key factual issue in this case it was that the trial judge had found that defendant’s text messages contained offensively coarse language and that the messages clearly went over the top and were sent with a purpose to harass. The trial judge also found that because defendant sent increasingly offensive text messages over a period of several days, the restraining order was necessary.
The error pointed out on appeal was the failure of the trial judge to find that plaintiff was in fear of defendant as well as the fact that the trial judge did not make any findings that concerned prior alleged harassment, threats, or acts of domestic violence, although there was testimony about some of those acts. On appeal defendant argued that, although the text messages contained offensive language, they did not rise to the level of harassment or domestic violence, and did not constitute a predicate act which would have warranted the issuance of a FRO. He also argued that the trial judge failed to find that a FRO was necessary to protect plaintiff. The court found that issuing a FRO based only on offensive text messages generally required factual findings about the context in which the communications were made.
The court further found that the trial judge’s finding that defendant’s language became increasingly foul over time did not, by itself, justify his conclusion that it was necessary to issue a FRO for plaintiff’s protection.
The key import in this decision is the trial court use of text messages, email, and social media communications which obviously would include Instagram Facebook and Snapchat‘s that have been screen shot and saved as photos and print it out for the trial court’s use between the parties to establish facts supporting a ruling that the predicate acts of domestic violence/harassment existed. However the appellate division once again order the trial court to make a Phone complete analysis under the existing case for that that there has to be eminent fear of bodily injury or psychological injury that stems from the harassing communications. The plaintiff must have apprehension and fear that the defendant is going to act upon in order to support a finding of need for a restraining order.
Hark and Hark handles domestic violence restraining order cases in every county in the state of New Jersey and will be happy to enter into any payment plan for you and your budget. Please call at your first opportunity if you have been served with a temporary restraining order.