Final Restraining Order (FRO) Against the Defendant Vacated Because There Were No Facts in The Record to Support Plaintiff’s Need for an FRO
Docket No. A-1527-20
Decided February 15, 2022
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division of New Jersey reversed and vacated a Final Restraining Order (FRO) against the defendant because there were no facts in the record to support plaintiff’s need for an FRO.
In E.A.M., on October 30, 2020, defendant filed a domestic-violence complaint against plaintiff. In the complaint, defendant certified he had been “living with [plaintiff] for approximately one month in a townhome, rented by the plaintiff, while separated from his wife” and alleged she had become “aggressive” with a knife “while they still both resided at the townhome.” Asked in the complaint to describe his relationship with plaintiff, defendant certified plaintiff was a former “household member.” On the same day, a judge granted defendant a temporary restraining order (TRO) against plaintiff. The TRO prohibited her from returning to the townhome.
On November 19, 2020, plaintiff filed a domestic-violence complaint against defendant. She alleged he had endangered her life, health, or well-being on October 30, 2020, by stealing her social security number, which his wife then used to authorize the gas company to shut off the gas “in the parties’ shared residence.” Plaintiff identified “harassment” as the criminal offense defendant had committed. In the “prior history of domestic violence” portion of the complaint, plaintiff alleged, among other things, defendant on October 11, 2020, had stolen her prescribed medication and medical marijuana and later that day, after admitting the theft, “moved out of the home.” Asked in the complaint to describe her relationship with defendant, plaintiff certified defendant “[w]as . . . a [h]ousehold [m]ember.” A judge granted plaintiff a TRO against defendant.
The trial judge conducted a one-day joint hearing as to each party’s FRO application. Both parties testified and represented themselves at trial. Defendant confirmed under oath he and plaintiff had lived in the same household for two or three weeks.
Plaintiff testified as to the October 30 events, which had led her to file the complaint against defendant and seek a restraining order. Plaintiff also testified about the October 11 medication theft she had described in the “prior history of domestic violence” section of her complaint. To support that allegation, plaintiff submitted a voicemail of defendant purportedly admitting to her mother he had stolen plaintiff’s prescription medicine. The voicemail was not played on the record, but defendant, while denying he had stolen plaintiff’s medication, admitted he had told plaintiff’s mother he had taken it.
At the conclusion of the hearing, the trial judge placed his decision on the record. He found defendant was “not to be believed” and dismissed the TRO defendant had against plaintiff. He found plaintiff’s testimony to be “somewhat suspect in a lot of ways,” but because “there is direct proof that [defendant] stole prescription medication from [plaintiff] . . . while living together,” citing defendant’s admission, he granted plaintiff a final restraining order against defendant “based on that form of harassment.” The trial judge made no findings concerning the need of an FRO to protect plaintiff pursuant to the second prong of Silver, 387 N.J. Super. at 127. On the same day, the trial judge entered the FRO.
Defendant appealed, and the Appellate Division reversed and vacated the FRO, finding the Judge failed to adequately support the record of a predicate act of domestic violence perpetuated by Defendant. Also, the Judge failed to make appropriate findings of the second prong of Silver — the necessity of the restraining order – and without having any facts in the record to support that plaintiff needed the FRO, the restraining order must be vacated.
This opinion is important to understand the Judge’s role in assessing an application for an FRO. In order for a plaintiff to convert a Temporary Restraining Order into a Final Restraining Order, they must prove a predicate act of domestic violence, and that the restraining order is necessary to prevent future acts of domestic violence. If plaintiff fails to prove either of these by a preponderance of the evidence, the restraining order will be dismissed. On the other hand, as the case here, if the plaintiff meets his burden, an FRO will be issued and will be there permanently unless plaintiff voluntarily dismisses it or defendant makes an application to dissolve under Carfagno.
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