To Convert a Temporary Restraining Order into a Final Restraining Order, They Must Prove a Predicate Act of Domestic Violence
Docket No. A-0216-19
Decided October 13, 2021
Submitted by New Jersey Family Lawyer, Jeffrey Hark.
In a recent unpublished decision the Appellate Division of New Jersey reversed a trial court’s entry of a Final Restraining Order (FRO) due to the Court’s improper findings of criminal mischief, failure to make legal assessments as to the necessity of the FRO, and failure to conduct appropriate courtroom procedure.
In I.M.R., Plaintiff alleged “[o]n July 21, 2019, around 2:00 a.m. [he] woke up and [saw] his car had been egged. There was also writing on his car with mustard that said “suck it” (penis drawing on vehicle). Plaintiff stated he contacted his ex-girlfriend via Facebook asking her why she egged his car. The defendant stated we did not do it. The plaintiff asked her who she did it with but she did not tell him. The defendant stated that she was with the people who did it but did not provide the names of who did it.”
The PDVA complaint checked criminal mischief and harassment as the two predicate acts of domestic violence plaintiff’s former romantic partner committed against him. N.J.S.A. 2C:25-19(a)(10) (13). The parties’ prior relationship gave the municipal court jurisdiction to consider plaintiff’s account of events ex parte and issue the TRO.
The Family Part judge conducted the FRO hearing on August 5, 2019. Both parties appeared before the court pro se. Plaintiff testified his romantic relationship with defendant ended in 2015. On July 21, 2019, plaintiff testified he “woke up” at around two o’clock in the morning saw that his car had been “egged” and immediately “suspected it was [defendant].” When the judge asked why he suspected defendant, plaintiff responded: “She’s pretty much the only person that I know . . . that . . . knows my . . . house and knows my car before my girlfriend now . . . .”
At the judge’s request, plaintiff gave the court his cell phone, allegedly containing messages that plaintiff alleged defendant admitted to the incident. Without attempting to ascertain the authenticity of the messages, the judge addressed defendant, while in the midst of plaintiff’s direct testimony, and asked her: “Did you send him a text message about it[?]” Defendant answered: “Yes, Your Honor.”
According to defendant, on the night of the incident, she had gone out with a friend. While drinking alcoholic beverages, they talked about their prior romantic relationships, including defendant’s relationship with plaintiff. Her friend was particularly upset about how her recent relationship ended. At some point, they decided to take an Uber to plaintiff’s house. Although defendant did not remember plaintiff’s address, she guided the driver in the direction of his house where they found his car. Defendant testified that, without any prompting, her friend said “let’s get out of the car and let’s throw some eggs at his car.” Defendant testified she believed her friend “had a lot anger due to her [former] boyfriend.”
The Court, based on this information, entered an FRO against Defendant, because she caused the events to go into motion and she should not have been there. Defendant appealed.
The Appellate Division reversed the entry of the FRO, finding that Defendant’s conduct was not criminal mischief, as there was no evidence defendant committed the act, her mere presence was not enough, and there was not testimony about the value of the damage to plaintiff’s vehicle. What’s more the judge failed to assess whether the restraining order was necessary for plaintiff’s protection – another necessary step. The Court also addressed the judge’s inappropriate courtroom procedure of reading messages from plaintiff’s phone without first authenticating the evidence.
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.
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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