PDVA Appeal Outcome: S.Y.R. v. R.R. – Docket A-3388-21 (Sept. 15, 2023)
Docket No. A-3388-21
Decided September 15, 2023
Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.
In a recent unpublished opinion, the Appellate Court of New Jersey decided defendant’s appeal from a final restraining order (FRO) entered against him pursuant to the Prevention of Domestic Violence Act (PDVA), in favor of plaintiff.
The parties have been married for thirteen years and have three children together. In December of 2021, plaintiff filed a complaint for divorce, which is still pending. In March of 2022, plaintiff asked defendant in a text to move out of the house. Defendant didn’t move out of the house. Instead, he filed an answer to the complaint in April of 2022. At 10:00 p.m. the same day defendant filed his answer to the complaint, plaintiff filed for a temporary restraining order (TRO). The TRO was granted, and defendant was required to vacate the marital home.
Plaintiff alleged that defendant harassed her on two occasions. One in May of 2021, and another in October of 2021, because he repeatedly asked her to have sexual relations with him, and because of a series of unrelated incidents between the parties. Plaintiff alleged one of the sexual encounters resulted in the birth of the parties’ third child, which plaintiff did not want.
At the FRO hearing, both parties were represented counsel. During her testimony, plaintiff referred to the two incidents as sexual assaults, but the TRO alleged only harassment. Plaintiff admitted that she acquiesced on both occasions, that defendant did not use force or restrain her in any fashion, and that such conduct had occurred throughout their thirteen-year marriage. Plaintiff denied her filing was related to defendant’s filing of an answer to the divorce complaint even though she sought a TRO only hours after the answer was filed.
Defendant testified at the FRO hearing that the parties were discussing divorce in 2021 and attended marital counseling together. There, they were counseled to engage in intimate relations to repair their marriage. Defendant admitted he requested sex from plaintiff on numerous occasions but testified he never proceeded unless she consented.
The trial court denied defendant’s motion for a directed verdict and granted plaintiff an FRO on May 26, 2022. The court found plaintiff established the predicate act of harassment and concluded plaintiff relented and acceded to defendant’s multiple requests for sex to stop the harassment. The trial court found the predicate act of harassment because it believed plaintiff’s testimony that she did not want to conceive even though the court termed defendant’s conduct as “requests,” and did not address defendant’s purpose in asking plaintiff for sex. Defendant subsequently appealed.
On appeal, defendant contended that the trial court erred in determining plaintiff proved the predicate act of harassment pursuant to the PDVA and failed to prove the threat of risk of future abuse pursuant to Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). Ultimately, the Appellate Court concluded that the trial court failed to make sufficient findings with respect to both prongs of Silver. The court vacated the final restraining order and reinstated the TRO until a new order is entered following the trial on remand. The Appellate Court articulated that the testimony and the trial court’s prior findings made with respect to prong one was insufficient to satisfy the Silver standard. The Appellate Court noted that the trial court failed to state the reasons a FRO was necessary pursuant to the totality of the circumstances to prevent imminent future harm or risk of future abuse, including whether a FRO was necessary when the conduct alleged was distant in time.
At Hark & Hark, we are experienced attorneys who represent clients for appeals in Superior Court for issues like the previously discussed case pertaining to FRO trials. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.
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