Articles Posted in Domestic Violence

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e3bc10d77963468f2705f7119c049b73-300x199On September 20, 2017 the New Jersey Appellate Division approved a domestic violence case for publication the matter of L.C. v. M.A.J. (A4933-15T2), in which the Appellate Division addressed the use of pre-trial in limine motions, which are pretrial motions commonly used to request the court to make legal determinations about evidence before trial, to seek an eve of trial dismissal of a litigant’s pleadings.

The Plaintiff in this case filed a domestic violence complaint in May, 2016 in which she alleged that the defendant was harassing her by sending communications to her and her employer; the complaint further alleged a history of past domestic violence that included physical abuse and controlling conduct.   At the final hearing, Defendant filed a motion in limine to dismiss that he claimed was based on  Rule 4:6-2(e) for failure to state a claim upon which relief may be granted.   His actual pleadings, did not address whether Plaintiff met the elements for a cause of action but asserted that his communications related to parenting issues, not harassment.   The court granted the motion to dismiss the temporary domestic violence restraining order and heard no testimony.

The Appellate Division reversed.  The Appellate Division condemned the use of in limine motions that are dispositive of or seek to terminate an action on the eve of trial.  Instead, an in limine motion at such a late date should only address preliminary or evidentiary issues, and even then such in limine motions are disfavored and should be heard sparingly.  Defendant’s motion did not ask the court to resolve a preliminary or evidence issue, but a sudden and summary dismissal of Plaintiff’s complaint, which the Appellate Division found improper, especially in a domestic violence matter where an alleged victim’s safety was at issue.   The Appellate Division stated that in rare cases could a domestic violence case be dismissed before trial, and even then, due process required adequate notice to the plaintiff and an opportunity to respond and file his/her own papers, which Plaintiff in this case did not have an opportunity to do with so little notice.   If Defendant felt that he had grounds for dismissal, he should have instead requested an involuntary dismissal at the close of the plaintiff’s case or at the close of all the evidence.

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When one thinks of acts domestic violence usually physical and verbal abuse come to mind. However, actions that involve the destruction of the property of another are often overlooked. file000596791788-239x300Destroying your significant other’s property falls under New Jersey statute, N.J.S.A. 2C:17-3(a)(1), which provides that an individual is guilty of criminal mischief if he or she “[p]urposely or knowingly damages tangible property of another.” Stated another way, when one sets fire to their significant other’s clothes a la “Waiting to Exhale” or their house a la Left Eye from TLC, these are acts of domestic violence and could lead to the filing of a temporary restraining order and the entry of a final restraining order.

In addition, most people do not know that even destroying jointly owned property can qualify as criminal mischief. For example, if you share a home and destroy shared property like a television, furniture or other shared property, this falls under the criminal mischief section of the Prevention of Domestic Violence Act.  In the unpublished Appellate Division case H.C.F. v. J.T.B., (A-5618-14T3 (App. Div. Sept. 7, 2017),  the appellate court affirmed the entry of a final restraining order on the grounds of criminal mischief. In this case, the plaintiff and defendant were married and resided in a two-story, three-bedroom house. The plaintiff testified that the parties were sleeping in separate rooms for some time and that during an argument the defendant punched the door to her room with a closed fist causing the door to come off the hinges. The defendant admitted to punching the door to the plaintiff’s bedroom. The trial judge found that the case came down to credibility and found the plaintiff’s version more credible. Although, the parties both owned the house the trial court noted that that does not give the defendant the right to damage property in the house because both of the parties have an undivided interest in the home. The trial court stated that the defendant knew what he was doing and admitted to punching the door.

The Appellate Division affirmed the trial court’s ruling and cited to N.T.B. v. D.D.B., 442 N.J. Super. 205, 222 (App. Div. 2015), to support finding that damage to a spouse’s undivided interest in the home as a tenant by the entirety constitutes the predicate act of criminal mischief. In the aforementioned case, the husband during the first incident destroyed speakers that were in the wife’s bedroom by pouring juice on them, and then he proceeded to throw them in the toilet after his wife refused to lower the volume of the music. During the second incident, the husband used his body to open the door to the wife’s bedroom when he discovered it was locked with the wife and their daughter inside the bedroom. The husband slammed his body into the wife’s bedroom door causing the frame to splinter. The marital home was jointly owned and purchased after the parties married. Thereafter, both parties obtained temporary restraining orders against the other.

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Approximately three years after the firestorm caused by the release of the elevator video showing star running back, Ray Rice, punching and knocking unconscious his then fiancé, the National Football League is once again in the headlines, this time for announcing that after its own investigation, the league was suspending another running back, Ezekiel Elliott, for six games for violating its Personal Conduct Policy, concluding that Mr. Elliott had committed acts of domestic abuse against his former girlfriend in 2016. Domestic-violence-2-300x123While the NFL has had to deal with a number of domestic violence incidents involving a number of players since the Ray Rice situation, the reason why this made the headlines was because it involved one of its star players, a winner of several Rookie of the Year Awards for his performance last year as a member of “America’s Team”, The Dallas Cowboys. Unlike the debacle in the Ray Rice matter, the NFL Commissioner, Roger Goodell, for the most part has been lauded for his handling of the Elliott matter.

This six game suspension appears consistent with the NFL Personal Conduct Policy instituted after the Ray Rice situation whereby those found to have committed domestic violence would be subject to a suspension of six weeks without pay for the first offense, with a second offense resulting in banishment from the league. Mr. Elliott has continuously denied the accusations made against him, and has filed an appeal of his suspension. How it will play out is yet to be determined. Whether Mr. Elliott did or did not do the things he was accused of, or whether the punishment meted out by the NFL was warranted is not the subject of this blog. Rather, it is a powerful example that when it comes to domestic violence even in the absence of a legal adjudication of guilt or innocence, others may still pass judgment on accusations with resulting serious consequences.

Mr. Elliott was accused by his former girlfriend of pushing her against the wall in February, 2016 and of assaulting her on several occasions in July, 2016 resulting in bruises about her body. While reports were filed, Mr. Elliott was not arrested nor were charges filed in either case. Notwithstanding this, because allegations of domestic violence were raised, the NFL launched its own investigation, consistent with its standard protocol, to determine if the player violated its Personal Conduct Policy which might result in discipline even if the player was not legally charged or convicted. As a result of this investigation, the NFL concluded that there was “substantial and persuasive evidence” supporting a finding that Mr. Elliott had been physically violent with the accused, determined that he violated the Personal Conduct Policy and assessed its six game suspension. Mr. Elliott has challenged these findings. Even though Mr. Elliott was neither charged nor convicted in a court of law, according to the NFL, Mr. Elliott is considered guilty of the actions of which he was accused. As a result, beyond the loss of six games pay, Mr. Elliott’s reputation and marketability likely had been irreparably harmed. A second set of domestic violence accusations may result in a permanent loss of his livelihood. Serious consequences indeed. If Mr. Elliott did the things he was accused of, he deserves what was coming to him. If not, what recourse would he have? Since no charges-domestic violence or criminal-were filed, he could not even fight the accusations in the court of law to determine his guilt or innocence. Upon which standards did the NFL conduct its investigation? Was it like a prosecutor presenting only its case to a grand jury? To what extent was Mr. Elliott or his representatives allowed to participate in that investigation or confront the evidence or witnesses against him? Did it start with a presumption of guilt as a backlash to the beating the NFL took in the court of public opinion in the Rice case? What does all this have to do with domestic violence cases generally?

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This past week the New Jersey Appellate Division issued an unpublished opinion in the case of V.J.C vs. M.V. (docket no. A-4587-15T3).  In this case the defendant appealed from a final d744f80a269bdfa75c34d7830ed52c13-300x200restraining order (FRO) entered by the trial court in favor of plaintiff pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. The defendant claimed that the trial court abused its discretion in denying his request for a short adjournment of the April 14, 2016 hearing until his attorney could arrive at the courthouse. The series of events that led to the defendant being in court that day are as follows.  Continue reading

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Summer is the time for: sea breezes, mountain air, trips to the museums with the kids in tow, and . . . domestic violence.  Statistically, domestic violence increases during summer months.  This rise is probably because there are a number of holidays in the summer months, and people take time off. There is something to be said about the old adage about idle hand and the devil. Here are some pointers about New Jersey’s approach to domestic violence. Continue reading

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On June 5, 2017 the Appellate Division approved for publication its opinion in the matter of TMS-v-WCP, A-4900-15T2, which involves reinstatement of  a final domestic violence restraining

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order.

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image1-232x300On Friday, billions of people around the world observed the Christian Holy Day of Good Friday. It marks the day that the Trial of Jesus of Nazareth occurred and when he was sentenced to death for failing to deny that he believed himself to be the Son of God. Christians believe that Jesus willingly suffered and died by crucifixion as the ultimate sacrifice for the sins of humanity (1 John 1:10). Easter Sunday celebrates Jesus rising from the dead, an event which is referred to as the Resurrection. Set in the springtime every year and often close to the Jewish Holy Day of Passover, Easter symbolizes a time of rebirth and renewal. Holy Thursday, which occurred yesterday, marks the event of the Last Supper of Jesus and his Apostles, during which the group were celebrating a Passover Seder when Jesus informed the group that he would be betrayed by his followers. Continue reading

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On March 14, 2017, the Appellate Division issued a published opinion in the matter of R.G. v. R.G. (A-0945-15T3)  in which the Appellate Division addressed the applicability of New Jersey’s file0001931487912-290x300Prevention of Domestic Violence Act to protect a man seeking a domestic violence retraining order against his brother. Continue reading

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I recently attended a seminar where the topic concerned the obtaining, analysis and use of medical records. While the main focus was how medical records were dealt with in civil litigation matters such as medical malpractice and personal injury cases, it was clear that a number of the issues discussed could apply to Family Court matters as well. A spouse may allege that they are unable to work, or may be limited in what type of work they can do, as a result of some sort of medical or psychological condition or disability, thereby impacting a claim for spousal and/or child support. A spouse may allege that they suffered physical and/or emotional injury as a result of an act or course of abuse by the other spouse leading to a claim for damages in an action for domestic tort. Continue reading

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The Violence Against Women Act (VAWA), 42 U.S.C. § 13701 et seq., is a United States federal law that was originally passed in 1994 and was reauthorized in 2013 in which the spouses and children and parents of United States citizens or lawful permanent residents may self-petition to obtain lawful permanent residency in the United States. The Immigration and Nationality Act (INA) is the law that governs immigration in the United States. The VAWA provisions relating to immigration are codified in section 204(a) of the INA. Rules published in the Federal Register explain the eligibility requirements and procedures for filing a self-petition under the VAWA provisions. People who may apply include: (1) a spouse of a U.S. citizen or lawful permanent resident; (2) a child of U.S. citizen or lawful permanent resident; (3) a spouse of U.S. citizen or lawful permanent resident who’s child has been battered or subjected to extreme cruelty for the reason bANGEL-13-144x300eing that a parent files for self-petition based on abuse of the child but both parent and child benefit; and (4) parent of a U.S. citizen . It is important to note that, despite its title, the VAWA is applicable to both men and women although spouses of undocumented foreign nationals cannot self-petition. Continue reading