Application For a Final Restraining Order (“FRO”) Based Upon the Predicate Act of Assault
Docket No. A-0791-21
Decided November 1, 2022
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished opinion, the Appellate Court of New Jersey decided plaintiff’s appeal of the denial of her application for a final restraining order (“FRO”) based upon the predicate act of assault against defendant, her husband, and the dismissal of the temporary restraining order against him.
The parties married nine years prior and have three children together. Plaintiff testified she had been beaten for many years and threatened with a knife on a few occasions as well. She also testified that defendant would hit her in front of the children, even when she was pregnant and strangled her leaving visible bruising from all of his fingers being wrapped so tightly around her neck. Plaintiff testified the predicate act of assault occurred during an argument between plaintiff, defendant, and defendant’s sister. Plaintiff alleged that defendant tried to hit her but was prevented from making contact by his sister. Defendant denied trying to strike plaintiff and denied all the past allegations of abuse.
At the conclusion of the FRO trial, the judge found extensive history of domestic violence between the parties and that the plaintiff was credible in her testimony that defendant came at her during the course of a heated argument. However, the judge did not find that defendant committed the predicate act of assault. The judge’s understanding of what the assault statute required was bodily injury, which did not occur because defendant’s sister intervened before defendant could contact plaintiff as plaintiff testified. The judge indicated that he would have entered the FRO against defendant had he found the predicate act of assault occurred because to him, defendant’s past history of domestic violence triggered the necessity of an FRO for this victim. Plaintiff subsequently appealed.
On appeal, plaintiff contended that she established both a predicate act (assault) and the need for a final restraining order to protect her from immediate danger of harm and to prevent future abuse. The Appellate Court agreed and reversed the trial court’s decision denying her application for an FRO. The court articulated that it was satisfied by the trial judge’s finding that defendant came toward plaintiff in the midst of a heated argument, “as undoubtedly he has done in the past, but that defendant’s sister stopped any contact,” supports the predicate act of assault under N.J.S.A. 2C:12-1(a)(1) or (a)(3). Therefore, the trial judge erred since the assault statute does not require bodily injury. Moreover, the court agreed with the trial court’s assessment that plaintiff needed the protections of an FRO to protect her from immediate danger of harm and to prevent future abuse based on the extensive history of domestic violence between the parties.
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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