In Order to Convert a Temporary Restraining Order into a Final Restraining Order, One Must Prove a Predicate Act of Domestic Violence
Docket No. A-0368-20
Decided February 28, 2022
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division of New Jersey upheld the imposition of a Final Restraining Order (FRO) against defendant for an alleged assault, but reversed and remanded for plaintiff’s request for counsel fees.
In H.S., The parties were married in June 2002 and had two children together: a son, Y.S. (born in 2012), and a daughter, H.S. (born in 2016). The parties separated in December 2019.
The parties had a physical altercation outside of their son’s school on January 13, 2020, which prompted plaintiff to seek a Temporary Restraining Order (TRO) against defendant. Plaintiff alleged defendant showed up “out of nowhere” during morning drop-off, pushed her out of the way, and got into the driver seat of her car. She testified that she tried to stop defendant, as their three-and-a-half-year-old daughter was still in the backseat of the car, and that nearby parents quickly assisted her, gathering around the vehicle to prevent defendant from driving away.
Plaintiff’s complaint described the January 13 incident and alleged several other acts of domestic violence against her during the marriage. The other acts included: grabbing plaintiff by the hair; forcing her out of the apartment; throwing her onto the stairs; choking her; threatening to kill her; threatening to ruin her career; threatening to take their children away from her; kicking her in the chest; throwing her on the floor; and hitting her in the face. The judge issued the TRO and granted plaintiff’s application to amend the TRO a few days later to add more details and specifics about the alleged abuse she endured.
A witness to the January 13 incident testified, indicating that she witnessed the assault and went out of her way to help plaintiff. Due to this testimony, the Court granted plaintiff’s FRO because of the January 13 incident and the history of domestic violence. The Court denied plaintiff’s request for attorney’s fees for an insufficient submission.
Both parties appealed. The Appellate Division dismissed defendant’s appeal and found the trial court had adequately found a predicate act of assault on behalf of defendant, as well as the need for the entry of the FRO because of the history of domestic violence. The Appellate Division also reversed and remanded on plaintiff’s request for attorney’s fees because plaintiff was entitled to reasonable attorney’s fees under the Prevent of Domestic Violence Act and the Court should have instructed plaintiff to submit a corrected attorney fee certification.
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.
What’s more, if plaintiff is successful in seeking an FRO against the defendant, they can also request reasonable attorney’s fees if they are related to domestic violence, i.e., representation for the hearing.
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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