Emb v. Rfb
16 A.3d 463
| N.J. Super. Ct. App. Div. | 2011Background
- Temporary restraining order issued against defendant August 18, 2009; indefinite TRO issued August 27, 2009 when service could not be effected.
- Final restraining order (FRO) entered after September 17, 2009 hearing at which defendant did not appear; court believed defendant voluntarily absent.
- Plaintiff, an 88-year-old mother, testified that defendant stole car keys, cell phone, bank book, money, and jewelry, and had previously locked her out and sent her belongings away.
- Plaintiff described defendant as controlling and used insulted language toward her; court found credibility in plaintiff’s testimony and concluded harassment occurred.
- Court did not specify which N.J.S.A. 2C:25-19 predicate act was invoked; found harassment under N.J.S.A. 2C:33-4 but did not detail the precise subsection.
- Defendant, appearing pro se on appeal, challenged the FRO on grounds it rested on insufficient proof of harassment and lack of proper predicate acts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the conduct constitute harassment under 2C:33-4? | Plaintiff contends acts were harassing and supported a 2C:33-4 finding. | Defendant argues there was no purpose to harass evidenced by the conduct. | Not proven; harassment not shown with the required purpose. |
| Was there a course of conduct or prior history to support harassment? | Past thefts and lockouts demonstrate a pattern aimed at harassing. | No established prior harassing history; thefts alone do not prove harassment. | Insufficient to support a finding of a course of conduct with intent to harass. |
| Did the trial court properly base the FRO on evidence that meets the harassment standard? | Trial court found credible harassment based on plaintiff’s testimony. | Evidence did not establish intent to harass or proper predicate acts under 2C:25-19. | FRO reversed; harassment not proven to the required standard. |
Key Cases Cited
- Silver v. Silver, 387 N.J. Super. 112 (App.Div. 2006) (requires predicate acts to properly support a domestic violence restraining order)
- State v. L.C., 283 N.J. Super. 441 (App.Div. 1995) (speech must be uttered with the purpose of harassing; mere expression not enough)
- H.E.S. v. J.C.S., 175 N.J. 309 (2003) (consider totality of circumstances in domestic violence determinations)
- Cesare v. Cesare, 154 N.J. 394 (1998) (factors for deference to family court findings and the need for sound reasoning)
- State v. Fin. American Corp., 182 N.J. Super. 33 (App.Div. 1981) (speech regulation limited to conduct, not mere expression)
- New Jersey Div. of Youth and Family Servs. v. E.P., 196 N.J. 88 (2010) (recognizes family courts’ jurisdiction and expertise in family matters)