Domestic Violence and the 2 Prong test of predicate acts and imminent fear of harm
Defined in Silver v. Silver, 387 N.J. Super. 112, 125-26 (App. Div. 2006)
D.C. v. M.M. , N.J. Super. App. Div. Decided April 16, 2019
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
Defendant appealed a FRO. The parties dated in 1982 and plaintiff alleged defendant assaulted her in 1983 after the relationship ended. Around 2008, defendant emailed plaintiff to ask how she was doing and in 2018, defendant sent plaintiff a Facebook message asking to talk. Plaintiff sought a TRO.
The facts are as follows:
In 1982, the parties dated for approximately one year. In 1983, after the relationship ended, defendant attended a party at plaintiff’s home. According to plaintiff, defendant assaulted her at the party, leaving visible marks and bruises on her neck, breasts, and face. Thereafter, the parties had no contact until sometime between 2008 and 2010, when defendant sent an email to plaintiff. In that email, defendant hoped plaintiff was “doing ok [and he] just wanted to reach out . . . .” Plaintiff replied to defendant’s email, instructing defendant to never contact her. On April 2, 2018, defendant sent a Facebook message to plaintiff. The message asked plaintiff, “[w]ould it be possible for us to talk? I’m profoundly sorry for what I did and would very much like to talk to you.” Upon receipt of the Facebook message, plaintiff sought a temporary restraining order (TRO) from the local police department. The police declined to issue a TRO. Plaintiff appealed the denial of the municipal TRO to the Superior Court. On April 3, 2018, a family part judge issued a TRO and scheduled the matter for trial seven days later.
After summarizing the testimony, the judge concluded defendant committed acts of harassment under N.J.S.A. 2C:33-4(a) and (c). The judge found the 1983 assault, the email sent to plaintiff two decades later, and the April 2018 Facebook message, were intended to harass plaintiff. The judge determined plaintiff was alarmed and annoyed by defendant’s contacts.
The judge then considered whether an FRO was necessary to protect plaintiff from further abuse. In determining there was a history of domestic abuse, the judge relied on plaintiff’s testimony describing an assault committed by defendant in 1983. No other incidents of violence were recounted by plaintiff during her testimony or set forth in her domestic violence complaint.
The judge acknowledged there was no testimony to support a finding of immediate danger to plaintiff’s person or property. However, the judge concluded that based on “the unrebutted testimony of [plaintiff], no evidence as to why these emails have come forward today [shows] any other purpose besides to harass. I do find that the Silver3 analysis is satisfied in this context by a preponderance of the credible evidence.”
Appeal Standard of Review