Unpublished Opinion: Appellate Court Remands FRO Case | Hark & Hark Attorneys
Docket No. A-2867-21
Decided July 31, 2023
Submitted by New Jersey Family 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In a recent unpublished opinion, the Appellate Court of New Jersey decided defendant’s appeal from a final restraining order (“FRO”) entered against him under the Prevention of Domestic Violence Act (“PDVA”), after a trial.
In the summer of 2017, the parties met through a local theater community and had a professional relationship for several years with one another until they started dating in August 2021. At the time, plaintiff was in a relationship with another man and defendant was married and had a girlfriend. At the beginning of their relationship, the parties texted each other from morning until night, discussing their future, and “sexting.” During the relationship, the parties engaged in oral sex on multiple occasions and vaginal sex once. Defendant also urinated and spit plaintiff’s mouth, forced her to eat her feces, and hit and choked her. Plaintiff testified defendant strangled her to the point of unconsciousness as well. She further testified that she felt defendant was controlling her and that she was under duress. Plaintiff showed pictures to the court of bite marks on her breasts and thighs, and marks on her thighs where defendant struck her. Plaintiff testified she felt she had to comply with defendant’s requests because he knew where she lived and worked. She indicated defendant also stated he could kill her if he needed to. At trial, plaintiff stated she needed the FRO because she was very afraid of the defendant.
Plaintiff blocked defendant on Facebook in December 2021. After plaintiff broke off the relationship, defendant contacted her twice and showed up at plaintiff’s place of employment. Following this event, plaintiff applied for a temporary restraining order (“TRO”) alleging the predicate acts of harassment and sexual assault. When defendant eventually testified, he stated that the parties discussed every sexual act before they engaged in it and all of the conduct between them was consensual. He described their liaison as a “BDSM” relationship. Defendant presented text messages from plaintiff referencing or requesting the acts described by plaintiff and stating her enjoyment. Defendant stated that plaintiff had ended the relationship because she suspected her boyfriend was about to propose and did not want defendant to reveal their sexual relationship. Defendant presented a text message in which he agreed not to disclose anything to plaintiff’s boyfriend. After considering the arguments of both parties, the trial court concluded that defendant assaulted plaintiff beyond the point to which someone could consent and issued plaintiff a FRO. The trial judge cited the choking incidents and physical abuse observed through the pictures submitted as evidence. Defendant subsequently appealed.
On appeal, defendant contended that the trial court erred in its factual findings and in issuing the FRO. Ultimately, the Appellate Court agreed with defendant’s assertion and remanded that matter. The appellate court articulated that although the trial court found defendant committed the predicate act of assault, the court failed to explain why an FRO was necessary “to protect the victim from an immediate danger or to prevent further abuse” following an assessment of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to (6). The court indicated without this determination it could not conduct a meaningful review of whether the FRO was properly issued. As a result, the court vacated the trial court’s order granting the FRO and remanded for the trial court to make the required findings regarding the need for an FRO.
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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