S.K., Plaintiff-Respondent, v. J.H., Defendant-Appellant.
No. A-1358-11T2
Superior Court of New Jersey, Appellate Division.
Argued April 17, 2012. Decided June 6, 2012.
43 A.3d 1248 | 426 N.J. Super. 230
Before Judges FISHER, NUGENT and CARCHMAN.
S.K. argued the cause pro se.
Before Judges FISHER, NUGENT and CARCHMAN.1
The opinion of the court was delivered by
FISHER, P.J.A.D.
In this appeal, defendant argues the evidence did not support the trial judge‘s finding that when defendant atrociously assaulted plaintiff, while both were on a trip to Israel with dozens of others, the
To obtain a final restraining order pursuant to the Act, a plaintiff must prove, by a preponderance of the evidence that: he or she is a “victim of domestic violence,”
Here, only plaintiff testified at trial. Defendant did not attend the hearing and appeared only through counsel. The parties stipulated to the records relating to defendant‘s criminal prosecution in Israel. Plaintiff‘s unrebutted testimony and the stipulated documents demonstrated that plaintiff was on a trip to Israel with approximately forty others, including defendant. The parties had not met before the trip began. On May 31, 2010, a few days after arriving in Israel, plaintiff, defendant and others attended a group function. Later that night, or in the early morning hours of June 1, 2010, plaintiff, a female friend of plaintiff‘s, and defendant walked to plaintiff‘s room. The Jerusalem District Court‘s decision, which the parties stipulated into evidence, contains a finding that defendant then
attempted to kiss [plaintiff] and she pushed him back and immediately entered her room. When she went out again, in order to walk to her friend‘s room and ask her to wake her up in the morning, she was noticed by [d]efendant, who ran towards her, jumped on her, for no reason, and began attacking her harshly, even after she had become unconscious. The [d]efendant did not stop until a resident of the place pulled him away from her and removed him from the place. As a result of the assault, [plaintiff] incurred severe bruises, broken orbit, fractures in jaw, tooth, cuts that required stitching and injury to the left lung.
Pursuant to a plea agreement, defendant admitted this conduct and was sentenced to an eight-and-one-half-month jail term, which was ordered to be served through community service with credit for defendant‘s incarceration for ten weeks following his arrest. Defendant was also ordered to pay plaintiff $57,000 in restitution.
These undisputed facts amply demonstrated the occurrence of a predicate act of such severity and viciousness that the need for a restraining order, as we said in Silver, supra, 387 N.J.Super. at 127, 903 A.2d 446, was “perfunctory and self-evident.” The only matter in dispute was whether plaintiff could be said to be a “victim of domestic violence” as defined by
Not every person injured by another is entitled to the Act‘s protections. The term “victim of domestic violence” was originally limited to persons eighteen years of age or older, or emancipated minors, who were “subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member,” as well as “a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant.”
Unlike its counterparts in other states, our Legislature has not defined what it meant by a “date” or a “relationship” or by the words in tandem. Instead, the Legislature left it to the courts to ascertain the scope of this term. Even though the Act is remedial in nature and is to be liberally construed in favor of encompassing as many victims as reasonably permitted by the Act‘s language, see Cesare v. Cesare, 154 N.J. 394, 400, 713 A.2d 390 (1998); J.S. v. J.F., 410 N.J.Super. 611, 614-15, 983 A.2d 1151 (App.Div.2009), we conclude that the evidence did not support the judge‘s finding of a dating relationship.
In 2003, one trial judge attempted to determine “what constitutes a `dating relationship.‘” Andrews v. Rutherford, 363 N.J.Super. 252, 253, 832 A.2d 379 (Ch.Div. 2003). Based on common principles suggested by other state statutes, Judge Michael J. Hogan developed a six-question test for ascertaining the existence of a dating relationship:
1. Was there a minimal social interpersonal bonding of the parties over and above a mere casual fraternization?
2. How long did the alleged dating activities continue prior to the acts of domestic violence alleged?
3. What were the nature and frequency of the parties’ interactions?
4. What were the parties’ ongoing expectations with respect to the relationship, either individually or jointly?
5. Did the parties demonstrate an affirmation of their relationship before others by statement or conduct?
6. Are there any other reasons unique to the case that support or detract from a finding that a “dating relationship” exists?
[Id. at 260, 832 A.2d 379 (footnote omitted)]
We conclude that Andrews poses the appropriate questions to be considered when the existence of a dating relationship is disputed while recognizing that, if applicable, other factors unique to the parties should also be weighed. Cf. J.S., supra, 410 N.J.Super. at 614, 983 A.2d 1151.
We embrace the Andrews factors mainly because they appear consistent with the common themes developed by the great majority of other states’ domestic violence laws.2 We adopt this approach because there is no evidence that our Legislature
Although there are many variations in the domestic violence laws enacted in other states, those that have described the parameters of a dating relationship3 have defined a date as a “social relationship of a romantic nature,”4 while excluding “a casual relationship or an ordinary fraternization between [two] individuals in a business or social context.”5 And many states, in describing the relationship required to invoke the protections of domestic violence laws emphasize, as relevant here, the frequency6 and duration7 of the
To be sure, the question posed is fact-sensitive. Here, the judge, in examining the facts in light of Andrews, found that the parties were on a “birthright trip” to Israel with forty other persons. The judge determined that the parties “hung out together,9 within this group,” and
on the night of . . . the incident, the defendant sat next to the plaintiff at dinner; although there was other available seating. He asked her what she was doing later on that night, after dinner. They had, in fact, spoken throughout the dinner. And the plaintiff indicated that she would be hanging out at the bar with her friends, and the defendant asked to join them.
While at the bar, she danced with the defendant and he later walked, both she and her friend, to [her] room. Although his efforts to kiss her were rejected by the plaintiff, she believed that on the night of this incident, they were in fact on a date.10
This evidence might arguably suggest an affirmative response to the first Andrews factor: that during the night in question there was “interpersonal bonding of the parties over and above a mere casual fraternization.” Andrews, supra, 363 N.J.Super. at 260, 832 A.2d 379. Although the evidence could have led to a contrary conclusion, the judge‘s finding that the parties were on “a date” during the evening in question is entitled to our deference because it is supported by evidence the judge found credible. Cesare, supra, 154 N.J. at 411-13, 713 A.2d 390 (holding that “findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence” and recognizing that, “[b]ecause of the family courts’ special jurisdiction and expertise in family matters, appellate courts should accord
To summarize, we hold that an interpretation of
The order under review is reversed and the matter remanded for entry of an order dismissing the complaint.