Dismissal Of a Temporary Restraining Order (TRO) And Denial of a Final Restraining Order (FRO) Reversed After a Judge Found Defendant Broke Plaintiff’s Finger in a Dispute
Docket No. A-95-21
Decided July 13, 2022
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey overturned and reversed a trial court’s dismiss of a Temporary Restraining Order (TRO) and denial of a Final Restraining Order (FRO) after a judge found defendant broke plaintiff’s finger in a dispute.
In M.R., On June 16, 2021, plaintiff filed her complaint and secured a TRO. In her complaint, she alleged that on that day, defendant committed the predicate act of harassment. Specifically, she stated that after defendant moved out of their shared apartment on June 1, he began to appear at her residence unannounced and gained entry without her permission using his key to the apartment. She also alleged that after letting himself in, he screamed at her, became aggressive, and “charged toward [her] . . . while she was holding the baby.” Her complaint also alleged a prior incident of domestic violence. Specifically, she stated “defendant broke [her] hand in the past (unreported).”
The next day, defendant filed his own complaint and secured a TRO against plaintiff. In his complaint, he alleged the predicate act of criminal mischief, N.J.S.A. 2C:17-3, and harassment. He also described two incidents of alleged domestic violence which occurred on June 14 and June 16, 2021, and that during the course one of the incidents, plaintiff damaged his cell phone.
After being served with defendant’s complaint, plaintiff amended her previously filed complaint on June 30, 2021, to specify additional incidents of domestic violence. In her amended complaint, she alleged the predicate acts of assault and harassment. She also added that on May 1, defendant “twisted” her fingers until two of them broke, and that on May 16, he “was drunk[,] accused [plaintiff] of stealing his wallet[,] . . . screaming [and] throwing things, [and] flipp[ing] [her] mattress over.”
Plaintiff also amended her complaint to add previous acts of domestic violence that occurred approximately during “the last week of April.” At that time, she alleged that she had to “hid[e] behind a bedroom door to protect [herself] from defendant [and] he knowingly opened it so it would hit [her]. ” According to plaintiff, “that happened more than once throughout the relationship [and] defendant subjected [her] to verbal [and] emotional abuse.”
The parties each testified at trial with diametrically different stories as to each of the events. The Court found, after hearing the parties testimony and reviewing the video evidence, that defendant did indeed assault the plaintiff on more than one occasion. Nonetheless, the Court did not find the FRO was necessary for the plaintiff’s protection, because the court did not find the prior history to be convincing for either party. Both FROs were denied.
Plaintiff appealed, and the Appellate Division overturned and reversed the dismissal, finding that once it is found that a physical act of domestic violence occurs, it becomes self-evident that an FRO is necessary for the victim’s protection. The FRO was reinstated for the plaintiff.
This opinion is important to understand that if a trial court determines any physical act of domestic violence occurred as plead in the TRO, an FRO will most likely be granted, as the plaintiff does not need to show that the FRO is necessary for her protection. If there is no physical act of domestic violence, such as harassment, the plaintiff would need to demonstrate that the FRO is necessary through prior acts of domestic violence and the nature of the predicate act.
It is vital to do everything you can to prepare for the case at the trial court level because if you are unsuccessful, an appeal may not work if credibility findings were against you. If you have a TRO against someone else or against yourself, contact the experienced attorneys at Hark & Hark today. At Hark & Hark, we help clients with prenups, divorce, custody, domestic violence, child support, alimony, adoptions and more.
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