A Temporary Restraining Order involving harassment allegations is quite common for the lawyers at our law firm. While egregious cases involving physical abuse of a victim in a domestic violence setting sadly occur, harassment is always a tough call for both seasoned attorneys as well as judges of the Family Court of New Jersey to decipher. Harassment requires “intent” to threaten the victim. Otherwise, when a couple divorces or “breaks up,” arguments are inevitable. As per New Jersey’s Domestic Violence Act, lawyer must prove intent to harass and threaten the victim. The following case provides an excellent demonstration of the difference.
In C.O. v. T.O., ex-husband, T.O. appealed a final restraining order granted by Superior Court of New Jersey, Family Part of Hudson County. The New Jersey Appellate Division reviewed the case and found that the final restraining order should be overturned because the judge never found that a final restraining order was necessary to protect the victim from additional acts of domestic violence or future harm.
C.O., the ex-wife, filed for divorce after nineteen years of marriage. Needless to say, a bitter and spite divorce ensued. The alleged harassment started in December of 2014, right after C.O. filed for divorce. In the divorce complaint, C.O. alleged that T.O had sent her several text messages related to her cell phone bill, the mortgage, how she raised their eighteen-year-old son, and that T.O. had hired a private investigator to follow her around. C.O. claimed that T.O. had repeatedly harassed her by text message about the issues she pointed out in her complaint. She submitted evidence of many text messages in which her ex-husband claimed he got information from the private investigator that showed that she was using drugs, and he threatened to reveal the information to the judge. In response, C.O. sent many text messages back to T.O., in which she demanded that he stop texting her and leave her alone.
T.O. claimed that their son had a drug problem, and that C.O. was also using drugs and seeing a drug dealer. He contended that were the reasons why he filed motion requesting that his son live with him instead of his mother. He also testified that it was never his intention to harass his ex-wife, but was merely frustrated about their financial issues, and how she was handling their son’s drug problem. T.O. also claimed that C.O. had tried to find people on Facebook to hurt him.
At trial, T.O. admitted during a cross-examination that he did threaten to inform the judge of C.O.’s drug use. C.O. admitted that she had visited T.O.’s new girlfriend’s house, called her a slut and a whore, and threatened her. The judge noted that the conduct in the relationship brought the case within the jurisdiction of the Prevention of Domestic Violence Act, and accordingly reviewed the issue involving text messages.
To be guilty of harassment, a person must, with the purpose and intention to harass: make or cause a series of communications anonymously, at extremely inconvenient hours, in offensive language, or in a manner likely to cause annoyance or alarm; kick, strike, shove or threaten to do the same; or engage in alarming conduct or repeatedly commit acts intended to alarm or annoy. According to the 2006 New Jersey Appellate Division case of State v. Castagna, when applying the statute, the word “harass” has to be given its conventional meaning of, to torment, wear out, annoy or exhaust the intended victim. Someone’s claim that he or she felt harassed is not enough to prove a purpose to harass.
A finding of repeated acts or a course of conduct must also be considered. The Prevention of Domestic Violence Act requires a Family Part court to take any previous history of domestic violence between the couple into consideration. If a court finds that a predicate act of harassment has been committed, it must then determine if the victim needs a restraining order for protection. In determining if a restraining order is necessary, the must consider the past history of domestic violence between the parties, and what the effect of that history has on whether a restraining order is necessary.
The judge found that many of the text messages were not harassing or a form of domestic violence, but were merely emotionally charged conversations about mortgage and cell phone payments. Still many of the text messages did rise above into the realm of making threatening, baseless, and unnecessary, statements with the purpose to harass. While the Family Part noted that it was possible that C.O. harassed T.O as well, in the form of her Facebook postings, the judge stated that T.O. did not file a domestic violence complaint. Therefore, the Family Part entered a final restraining order in favor of C.O., but did not make any findings, or address her need for the restraining order.
A judge can only issue a final restraining order after finding: that the parties are in a relationship covered by the Prevention of Domestic Violence Act, there was an actual act of domestic violence committed, and that the restraining order is needed to protect the victim from immediate harm or future abuse based on an analysis of the elements enumerated in New Jersey Statute 2C:25-29(a)(1).
While the New Jersey Supreme Court urges the New Jersey Appellate Division to pay special attention to the interaction between couples who just ended their relationship when determining if someone acted with the prerequisite intent to harass, appellate courts still give deference to Family Part determinations in domestic violence cases. The New Jersey Appellate Division will not reverse a Family Part’s fact finding as long as those findings are supported by substantial, adequate, and credible evidence. Because the Family Part has special expertise in family matters, an appellate court will defer to a family court’s judgment and only reverse a Family Part’s findings if they are so clearly erroneous as to be unjust. That being said, the New Jersey Appellate Division does not owe any special deference to any interpretation of law of legal conclusion of the Family Part.
The New Jersey Appellate division did not reverse the Family Part judge’s findings and determination that the text messages were harassment. Still, a finding of domestic violence is just the first-step in a two-step process. After finding that a predicate act of domestic violence has occurred, a judge must then find that a final restraining order “is necessary . . . to protect the victim from an immediate danger or to prevent further abuse.” In C.O. v. T.O., the judge failed to find that a final restraining order was needed to protect C.O. Because of the lack of factual findings about any past incidents of domestic violence, the spiteful and bitter nature of the freshly filed divorce, the actual nature of the “baseless” and “threatening” text messages, and a review of the factual record, The New Jersey Appellate Division concluded that there was not enough evidence to find that a final restraining order was necessary to protect C.O. or prevent future harm. Therefore, the appellate panel had no choice but to order that the case be heard again with express instructions for the Family Part to take new testimony, analyze the evidence, and determine if a final restraining should be entered under the two-part test required by the Prevention of Domestic Violence Act.
As my office represents many domestic violence cases in New Jersey, please contact my office if you find yourself involved in such a matter.