Denial of A Temporary Restraining Order (TRO); No Predicate Act or Credibility, and Reliance on Irrelevant Facts
Docket No. A-4174-18T3
Decided December 16, 2020
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division reversed a trial court’s denial of a Temporary Restraining Order (TRO), as the Court failed to make appropriate findings as to a predicate act, failed to make credibility findings, and also relied on irrelevant facts.
In L.E.A., the parties are cousins whose 2016 marriage in Sudan was arranged by their families. On September 10, 2018, plaintiff filed a complaint and application for a TRO against defendant alleging assault, terroristic threats, and harassment as predicate acts of domestic violence. Plaintiff then filed an amended complaint and application for a TRO, also alleging assault, terroristic threats, and harassment as predicate acts of domestic violence.
Plaintiff testified that defendant was in Sudan on February 26, 2018, the day her grandparent died. He refused to accompany her to the funeral. According to plaintiff, when she questioned defendant about his refusal, he repeatedly slapped, hit, and kicked her, including while she was on the floor after having tripped during the assault. She testified that defendant’s brother stopped the assault after she briefly escaped and shouted for help.
Plaintiff also testified that on June 13, 2018, in New Jersey, she received defendant’s permission to go with several women to have henna applied to her hands for a religious holiday. According to plaintiff, when she arrived home late an angry defendant pushed her, reminded her of the assault in Sudan, and said that if he beat her his brother would not be there to intervene and he would continue the assault until she needed hospitalization.
Defendant denied the allegations, testifying as to a different series of events,
The trial court denied the Final Restraining Order (FRO). The Judge did not discuss the statutory factors of any of the predicate acts alleged. The Court also did not make explicit credibility findings. The Court denied the FRO on the basis that there were a few incidents where defendant jokingly slapped the plaintiff. The Court also provided skepticism that plaintiff may have applied for the FRO for immigration reasons.
The Appellate Division found that the trial court’s failure to discuss statutory factors of the predicate acts and lack of explicit credibility findings warranted reversal. Further, the Court’s reliance on “irrelevant” facts such as the joking slaps, instead of focusing on plaintiff’s real allegations of abuse was inappropriate. The Appellate Division found the reliance on facts of plaintiff’s reasons for the Temporary Restraining Order (TRO) related to her immigration status was also irrelevant and inappropriate. For these reasons, the Court revered and remanded for a new trial.
The key takeaway in this case is a trial Court must make specific findings for domestic violence matters. First, they must make findings as to the statutory factors of each of the predicate acts alleged by the plaintiff. The Judge must also make explicit credibility findings when there are disputed facts. The judge must also rely on sufficient facts from the record to support legal conclusions as to grant or deny an FRO. Failure to do these can result in a reversal of the judge’s decision on appeal.
Remember, restraining order cases are all about credibility. Once credibility is determined, it is fairly simple to determine whether an FRO will be granted. Make sure you hire an experienced attorney for your domestic violence matter to bolster your credibility and get you the desired result.
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