To Convert a Temporary Restraining Order into a Final Restraining Order, One Must Prove a Predicate Act of Domestic Violence
Docket No. A-1733-20
Decided March 7, 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In a recent unpublished decision, the Appellate Division of New Jersey upheld the imposition of a Final Restraining Order (FRO) against defendant for an alleged assault during the break down of a marriage.
In A.L., the parties were married in 2005 and have two daughters who were nine- and twelve-years old when the FRO was issued. In a May 18, 2020 letter, defendant’s lawyer advised plaintiff that defendant would file a complaint for divorce if plaintiff did not contact her within two weeks to discuss resolving amicably “certain matrimonial issues.”
On June 5, 2020, plaintiff obtained a temporary restraining order (TRO) against defendant, claiming assault and harassment as predicate acts and alleging she had pushed him and had spat on him that morning. He also contended she had told him to hit her in an effort to provoke him. He asserted similar incidents had happened in the past.
The parties, both represented by counsel, and their children testified during a five-day trial. Plaintiff testified about past domestic-violence incidents and the events of June 5, 2020, stating defendant with her two hands open “had pushed [him] in [his] chest, spit at [him] and said to hit her.” According to plaintiff, because she had pushed him, his back hit the granite countertop in the kitchen, causing him to feel pain briefly. Plaintiff also testified he still needed protection because “the only thing that has stopped her is the threat of immediate arrest . . . .” On cross-examination, plaintiff denied or did not recall any occasions in which he committed domestic-violence acts against defendant.
Defendant denied speaking to plaintiff on June 5, 2020, testified she did not recall seeing him that day or speaking with him any time that week, and denied other alleged domestic-violence incidents. She admitted breaking a bedroom mirror and a sign in their house, tearing a photo of plaintiff’s grandparents and that on another occasion she “very well may have” told plaintiff to “drop dead.” She accused plaintiff of pushing her several times in the past and testified about times he had yelled at her and called her names and had engaged in domestic-violence acts against her.
At the conclusion of the trial, the judge granted plaintiff’s FRO application, placed her decision on the record, and issued the FRO. The judge found plaintiff to be credible. She found defendant’s testimony “at points . . . not credible,” noting defendant had “continually laughed and smirked” and that her “ongoing laughing, rolling of eyes, complete[ly] inappropriate reactions during the testimony of [plaintiff] weighed against her credibility in this matter.” The judge found “telling” that defendant was “laughing while the[ir] daughter . . . testif[ied] that her mother calls her father a piece of shit all the time.” Defendant’s “troubling” behavior during the trial “couple[d] . . . with the testimony and how she testified” and her “complete disregard” for “the seriousness of what’s happening here” caused the judge “to question her veracity.”
Defendant appealed the entry of the FRO and the Appellate Division affirmed, ruling the credibility, factual, and legal findings and conclusions were supported by the substantial credible evidence found on the record.
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.
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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