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New Jersey Appellate Division Allows Consideration of Violation of Civil Restraints When Considering New Claims of Domestic Violence

New Jersey’s Prevention of Domestic Violence Act (DVA) was designed to protect victims of serious domestic disputes from the dangers inherent in continued contact with a domestic abuser.  Toward that end, the DVA envisions a Final Restraining Order that protects the victim from most contact with the abuser, and imposes criminal consequences to an abuser who violates a final domestic violence restraining order.  Sometimes, the practicalities of trying to resolve complex litigations as well as the need to co-parent minor children lead to the dismissal of a Temporary or Final Domestic Violence Restraining Order and the protections of the DVA for the less pervasive protections of an ordinary civil order or judgment.

One of the dilemmas facing an attorney for a victim of domestic violence when agreeing to substitute a common matrimonial order for the richer protections of the Prevention of Domestic Violence Act is what can be done if the aggressor continues the conduct that begat the original Domestic Violence Order, and what is the evidential and legal ramification of the dismissed restraining order?

This long asked question was answered by our Appellate Division on March 24, 2014 in the reported case of N.B. v.  S.K.    N.J. Super       (App. Div. 2014), an opinion written by Hon. Clarkson S. Fisher, Jr.,  P.J.A.D.  As frequently occurs after the entry of a Final Restraining Order, the parties agreed to substitute domestic violence restraints  for restraints in the matrimonial judgment, and allowed the domestic violence restraining order to be vacated.  The matrimonial agreement provided that the husband would have the right to contact with the wife only by email dealing with child care issues.  Over the years the Husband violated this order, contacting the Wife by phone and hence occasionally using a prohibited means of communication and on other occasions addressing unpermitted topics by phone or email.

After years of enduring the husband’s failure to abide by the terms of their matrimonial agreement the Wife filed a new domestic violence complaint against the husband in 2009.  This matter was dismissed by the Trial Judge who found that the conduct of violating the civil restraints in the matrimonial agreement was close to the line but did not cross the line into domestic violence.

Emboldened by the trial judge’s ruling, the Husband continued to violate the restraints in the matrimonial order to the Wife’s consternation until she filed another domestic violence complaint in 2012.  Here the husband violated the order by repeatedly calling the Wife and leaving messages, which he admitted violated the restraints in the matrimonial judgment.  The Trial Judge found that the Judgment had been violated, but that the conduct did not constitute domestic violence because domestic violence requires a showing that an enumerated offence was committed which, pertinent to the matter, was the criminal harassment statute.  The trial court found that the harassment statute required proof that the actions of the husband were communications that were: inconvenient, coarse or likely to cause annoyance or alarm.   The trial judge refused to look at the contact in context of the prohibition in final matrimonial judgment and the continued post judgment violations of the husband.

The Appellate Court, however, reversed and held that because the behavior that constitutes harassment is fact sensitive, courts must look to the totality of circumstances of the parties in determining if domestic violence occurred, and hence the limitation of contact in the divorce agreement and the Husband’s continued violations of that agreement over the years were to be considered by the trial court in considering  whether there was domestic violence.  Thus even if the Husband’s last spate of calls were not anonymous, made at inconvenient hours, or made with coarse language, during the past decade the Husband was repeatedly ordered not to communicate with the Wife and he continued to violate those orders.  To determine if his recent calls were meant to alarm or did alarm or seriously annoy the Wife warranting the entry of a final domestic violence restraining order, the courts have to consider them in light of the parties’ history.   Hence, the Wife should have been permitted to submit evidence of past violations of the matrimonial restraints, not because those violations were per se acts of domestic violence, but because the past violations support the claim that the Husband engaged in acts of harassment by making communications with the purpose to alarm or seriously annoy.  Such evidence explains why the Wife would be alarmed or seriously annoyed by the Husband’s communications.