V.W. VS. R.M.B. (FV-20-1028-16, UNION COUNTY AND STATEWIDE)(RECORD IMPOUNDED)
A-3165-15T1
| N.J. Super. Ct. App. Div. | Aug 1, 2017Background
- Parties divorced and entered an MSA providing shared legal and residential custody of their two children.
- A prior FRO entered December 9, 2015 limited contact; parties disputed who would take the daughter to a January 18, 2016 autism evaluation appointment.
- Plaintiff learned their daughter had been diagnosed with autism (or had notes suggesting autism) and demanded participation; defendant believed the December FRO allowed her to attend and enforce custody for appointments.
- Text exchanges escalated: defendant said she would attend the appointment "with a copy of the FRO," plaintiff said she would come with the MSA; plaintiff brought a friend to the appointment and police were called after a confrontation in the hospital lobby.
- At the hospital defendant was separated by staff, later permitted to listen by phone; plaintiff filed for a restraining order alleging harassment.
- Family Part found both sides generally credible but concluded defendant committed harassment by using the FRO as a "sword," entered a February 11, 2016 FRO for plaintiff; defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant committed harassment under N.J.S.A. 2C:33-4 (predicate for an FRO) | Defendant’s texts and showing up at the hospital were intended to alarm and harass plaintiff | Defendant believed she was entitled by the December FRO to attend/enforce custody for the appointment and only communicated that belief | Reversed: evidence did not show defendant had the purpose to harass; texts reflected a (mistaken) intention to enforce perceived rights, not a conscious object to alarm |
| Whether a FRO was necessary to protect plaintiff from immediate danger or further abuse (N.J.S.A. 2C:25-29 factors) | Plaintiff argued conduct warranted protection given stress to children and confrontation at hospital | Defendant argued no intent to harm; hospital staff separated them and police arranged phone attendance | Court vacated the FRO and remanded for a confirming order; no basis shown to sustain FRO here |
Key Cases Cited
- Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474 (1974) (standard of appellate review for trial court findings of fact)
- Cesare v. Cesare, 154 N.J. 394 (1998) (deference to trial court credibility findings)
- J.D. v. M.D.F., 207 N.J. 458 (2011) (requirement that harassment under N.J.S.A. 2C:33-4 include purpose to harass; subjective intent standard)
- Kamen v. Egan, 322 N.J. Super. 222 (App. Div. 1999) (commission of a predicate offense does not automatically mandate a domestic violence restraining order)
- Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006) (two-step analysis for domestic violence complaints: proof of predicate act and necessity of a restraining order under statutory factors)
- Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995) (evaluate alleged predicate acts in light of prior history and immediate danger to person or property)