As a family law attorney, there is no question in my mind that domestic violence cases regarding harassment are often the most difficult for New Jersey Family Part judges to determine if a temporary restraining order should be converted to a final restraining order. The lawyers at my law firm and I just reviewed the recent case of J.S. v. C.H. the New Jersey Appellate Division reviewed a restraining order against a former boyfriend who threatened to post private videos of his ex-girlfriend on the internet. The court found that while a domestic violence crime would justify a restraining order, the boyfriend’s threats did not amount to criminal harassment. Following please find the facts of the case as well as the Court’s logic in coming to a decision.
J.S. and C.H. started dating in June 2012, and their relationship ended shortly after on October 19, 2013. From that point on they continued to see each other on and off again until June 2014. Throughout the month of June, J.S. sent C.H. rude text messages, calling her names, and implying that he was going to post her private videos on the internet.
According to C.H. this was not the first time her boyfriend had made such threats. She went to the police to finally try to put a stop to it. When the trial judge questioned J.S. about his motives, he contended that he was hurt when C.H. broke up with him, and only wanted her to understand how hurt he was. Further, he contended that after two years of being with him, C.H. would have known that he was not serious. The judge ended the hearing at that point stating, “that’s where you cross the line.” The court found that that J.S.’s statement represented an admission of criminal harassment. Thus he found that C.H. had established, by a preponderance of the evidence, that J.S. had committed a domestic violence act that required a final restraining order. In legal terms, a preponderance of evidence means that a party has shown that its version of facts, causes, damages, or fault is more likely than not the correct version. This standard is the easiest to meet and applies to all civil cases unless otherwise provided by law.
The concept of preponderance of the evidence can be visualized as a scale representing the burden of proof, with the totality of evidence presented by each side resting on the respective trays on either side of the scale. If the scale tips ever so slightly to one side or the other, the heavier side will prevail. If the scale does not tip toward the side of the party bearing the burden of proof, that party cannot prevail.
As the judge recited the provisions of the restraining order, J.S. tried to ask a question. Judge would not allow J.S. to interject while he was reading the order. J.S. objected and stated that he felt like he did not get to ask the many questions that he had. The judge simply said that he would be allowed to ask any questions he want . . . after he was finished issuing the order. J.S. felt like his cross examination ended before he even got to say anything. An important fact that he did not get to discuss was that he never threatened or violated her in any way ever. The judge stated that he was sorry, but he already ruled on the case.
Defendant appealed and argued that the proof the trial judge relied on to enter a restraining order against him was not sufficient, and that due process guarantees him a fair opportunity to be heard and to defend himself against his girlfriend’s claims. The constitutional guarantee of due process of law, found in the Fifth and Fourteenth Amendments to the United States Constitution, prohibits all levels of government from arbitrarily or unfairly depriving individuals of their basic constitutional rights to life, liberty, and property.
The Appellate Division stated that their role in reviewing a trial judge’s conclusions after a non-jury trial is limited. They found the factual findings were supported by substantial credible evidence and thus were bound by them. The New Jersey Supreme Court case of Cesare v. Cesare, established that an appellate court should not disturb the legal conclusions and factual finding unless they are so clearly unsupported or inconsistent with reasonably credible evidence that they offend the interests of justice.
According to New Jersey Statute 2C:25-18, domestic violence is a serious crime against society. There are thousands of victims in the State of New Jersey who are beaten, tortured, and even killed in some extreme cases. There is also a correlation between spousal abuse and child abuse. Children, who may not be physically assaulted, suffer deep and long lasting emotional affects from witnessing domestic violence. In passing New Jersey Statute 2C:25-18, the legislature intended to make sure victims of domestic violence had the maximum protection from abuse that the law could provide.
When hearing a domestic violence case, the trial judge has two responsibilities. The judge must first determine if the victim has proven, by a preponderance of the evidence that one or more acts enumerated in New Jersey Statute 2C:25-19a has occurred. After an act of domestic violence has been established, then the judge must decide whether the court should order a restraining order to protect the victim.
In C.H. v. J.S., criminal harassment was alleged. Criminal harassment is listed as an offense recognized as a form of domestic violence. To be guilty of harassment, a person must: make or cause a series of communications anonymously, at extremely inconvenient hours, in offensive language, or in an manner likely to cause annoyance or alarm; or engages in alarming conduct or repeatedly commits acts intended to alarm or annoy.
The Appellate Division noted that New Jersey courts have struggled with the level of proof needed to support a domestic violence restraining order based on harassment. All offensive or annoying behavior does not constitute harassment. Many times, one person’s categorization of another’s actions as harassing could be vague and conclusory, which makes it difficult for a trial judge to distinguish the line between domestic violence and ordinary quarrels. A person must prove that the other acted with a purpose to harass. A person acts with purpose when he or she acts with a conscious objective to engage in that conduct or to cause such a result. In other words, there must be proof that a person’s objective and intent was to harass, or annoy, torment, wear out, or exhaust. Simply knowing that someone may be annoyed is insufficient to prove purpose to harass.
Direct proof of intent is often very difficult to come by. Therefore, purpose, may and is often inferred from what is said and done, the surrounding circumstances, and prior conduct and statements. The role of the Appellate Division is to determine whether the trial judge’s inferences were rational and based on evidence in the record. The job of the trial judge is to consider the entire relationship between the couple and set forth their findings of fact accordingly.
For the afore-mentioned reasons the Appellate Division agreed with J.S. that the evidential record was insufficient to satisfy either the requirements for a final restraining order or the conclusion that J.S.’s conduct amounted to harassment. The Appellate Division found that C.H.’s statement regarding the offending text messages did not include any details like when the messages were received, or what each message said. C.H. never presented the text messages nor offered any evidence to support an intention to harass. Finally, the Appellate Division found that J.S.’s statement did not amount to an admission of conduct. In fact, he specifically denied an intention to harass. The panel stressed that J.S.’s fundamental right to be heard was denied by the trial judge’s conduct. The due process guarantee found in the Fourteenth Amendment to the United States Constitution, demands an assurance of fundamental fairness during legal proceedings. This includes the right to be heard, the right to cross-examine adverse witnesses, and the right to call witnesses. Accordingly the Appellate Division vacated the final restraining order and ordered a new trial before a different Family Part Judge.
Anyone who is either pursuing or defending a Temporary Restraining Order must have an attorney representing them in Court. Any questions, please contact my office immediately. Thank you.