When handling a final restraining order at the Superior Court of New Jersey, an experienced trial lawyer knows that first the victim must prove that a “predicate act” of domestic violence occurred on the date that the temporary restraining order was issued. Examples of a predicate act under New Jersey’s Prevention of Domestic Violence Act include but are not limited to harassment, terroristic threats, assault, criminal mischief and stalking. However, once the attorney representing the victim is successful in proving that domestic violence occurred on the day in question, the court shall then entertain and highly consider any history of domestic violence between the victim and the defendant. If your attorney is successful in establishing both, a final restraining order shall be issued.
The paramount 1998 New Jersey Supreme Court case of Cesare v. Cesare, established this interpretation of the Prevention of Domestic Violence Act, New Jersey Statute 2C:25-17. In Cesare, the Supreme Court of New Jersey specifically tackled the issue of the applicable standard of review that should be applied, and explored the role a past history of violence should play under the Prevention of Domestic Violence Act in evaluating a domestic violence complaint that alleges terroristic threats and harassment.
At the trial level, the Family Part judge found that Richard Cesare’s actions violated the Domestic Violence Act and issued a restraining order to protect Kathleen Cesare from future abuse. Conversely, the New Jersey Appellate Division determined that the trial’s court decision was a “manifest denial of justice,” and reversed. Kathleen filed a certification with the Supreme Court of New Jersey for review. The Supreme Court of New Jersey reviewed the case and reversed for the following reasons.
The Prevention of Domestic Violence Act indicates that the focus of the Legislature was regular serious abuse. This is evidenced by the references to torture, battery, beatings, and killings. Another focus was the long term damage suffered by children who observed the same acts. Some of the remedies provided by the statute are the exclusion of the offender from the marital home, suspension of visitation, monetary relief to the victim, and mandatory counseling. To ensure that victims of domestic violence who were subjected to criminal conduct by their mates had complete access to protection under the legal system, the domestic violence statute incorporated the statutes for homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual conduct, lewdness, criminal mischief, burglary, criminal trespass, and harassment.
In Cesare, the alleged acts were terroristic threats and harassment, both predicate acts enumerated in the Prevention of Domestic Violence Act. While New Jersey Statute 2C:25-29(a) does not require a trial court to incorporate all of the factors required in a civil context, it does require that acts alleged by a victim to be domestic violence must be evaluated in light of the prior history of violence between the parties. Even though a court is not obligated to find a past history of abuse to conclude an act of domestic violence has occurred, a court must still consider that factor in its analysis. Thus, not only may a court find that one sufficiently egregious act may constitute domestic violence even if there is no history of past violence, but a court may also conclude that an ambiguous incident qualifies as an act of domestic violence, based on the fact that the parties have a history of violence.
The crime of terroristic threats, a third degree felony, is defined by New Jersey Statute 2C:12-3(b) to occur when a person threatens to kill another with the intent to put that person in imminent fear of death. Proof of the same is measured by an objective standard. The victim must prove whether: (1) he or she was actually threatened; (2) there was intent behind the threat; and (3) a reasonable person would have believed the same threat.
The Supreme Court of New Jersey reasoned that a relationship’s prior history can shed light on the context of a domestic violence issue, and so trial courts must consider the entire relationship between the parties, and specifically set forth their findings of fact. On July 9, 1996, Kathleen and Richard were engaged in an argument that lead to the filing of a domestic violence complaint and temporary restraining order against Richard. The couple had been married for thirteen years and had three young children together. On the night of July 9th, the couple were arguing about Kathleen’s wish to end the marriage. Kathleen told Richard that if she choose to go to court she would be entitled to equitable distribution and child custody and he would have no choice in the matter, to which Richard responded, “I do have a choice, and you will not get either of those things.” Kathleen construed this language as a threat on her life because in the past Richard had told her that he would kill her before she got either custody of the children or any part of the marital assets. She further maintained that Richard’s threat was veiled because she recently went to a lawyer and made his previous threats public. Unfortunately, the couple’s past was riddled with threats on Kathleen’s life. These included threats that he would tie her to the railroad tracks behind their home, tie her in the shed and light a gas explosion, or make it look like a suicide. He went so far as to threaten to get someone else to do a contract killing. Richard had slapped Kathleen a couple times in the past, had a history of beating the children, and using profanity when referring to her or the children. While these occurrences were not commonplace they still occurred. Kathleen testified that Richard kept three guns and ammunition in the home. He was also on medication for depression. Fearing for her life, Kathleen left and went to the police station to file a domestic violence complaint against him, and on July 10, 1996 obtained a temporary restraining order which removed him from the home. The Family Part found there was sufficient cause to also enter a final restraining order.
Surprisingly, the New Jersey Appellate Division held that under a standard of review based on sufficient, credible evidence, the trial court’s findings were a “manifest denial of justice. The New Jersey Appellate Division reviewed the facts and concluded the conduct did not qualify as terroristic threats under New Jersey Statute 2C:12-3(b), because there was no evidence that Richard’s statements were intended to put Kathleen in imminent fear of her life, and that an ordinary reasonable person would not perceive Richard’s statements as a threat of violence. Kathleen petitioned the Supreme Court of New Jersey for Review.
Appellate review of a trial court’s fact-finding is limited. Generally, findings by a trial court are binding on appeal as long as they are supported by adequate, substantial, credible evidence. The Supreme Court of New Jersey stated that because a trial court hears the case, sees and observes the witnesses, and hears them testify it has a better perspective in evaluating the credibility of witnesses. Therefore a trial courts factual findings and legal conclusions should not be disturbed by a higher court without a showing that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. Moreover, Family Part courts has a special expertise in domestic relations, and appellate courts must give their fact fining special deference. The Supreme Court of New Jersey found that in consideration of the provisions of the Domestic Violence Act, as well as the history between the parties, there was sufficient, credible evidence for the trial court to have found Richard committed domestic violence. Given the appropriate deferential standard of appellate review, the New Jersey Appellate Division should have yielded to the trial court’s discretional determination. Therefore the Supreme Court of New Jersey dismissed the New Jersey Appellate Division’s reversal of the restraining order.
Please contact my office if you or a loved one is facing a domestic violence situation.