To enter a final restraining order under the predicate act of harassment, your lawyer must present your case so that a judge of the Superior Court of New Jersey may analyze the two-part Silver test. First, a New Jersey Family Court must determine if a predicate act of domestic violence has occurred. Then, the court must decide if there is any immediate danger to the victim. In determining if is a possibility of immediate danger, the court must consider and make factual findings related to the past history of domestic violence between the parties. The attorneys make their final arguments and then the judge decides if the restraining order should be made final.

In L.I. v. C.M., former boyfriend, C.M., appealed from a final restraining order entered under the Protection against Domestic Violence Act. L.I., the ex-girlfriend, got the order to protect her from C.M.’s acts of harassment. On appeal, the New Jersey Appellate Division reversed the final restraining order because the trial court did not apply both prongs of the Silver v. Silver test.

On December 10, 2014, L.I. got a temporary restraining order against C.M. A trial was held over two days in January 2015, and the parties were the only witnesses present. A direct examination of both litigants was conducted by the court, and each party also had an opportunity to cross-examine the other party. During C.M.’s examination, the court determined that L.I. had successfully proven her case, and entered a final restraining order in her favor. However, the judge realized that he might not have given C.M. a fair trial, and vacated the final restraining order sua sponte, reissued the temporary restraining order, and ordered that the issue must continue in another hearing. Sua sponte describes an action of the court, taken without a formal request from another party. Or in other words, it is the judge deciding to do something without a motion, on his or her own authority. L.I. supplemented her testimony at the second hearing. Upon questioning, C.M. was determined to not be credible, and so the court reissued the final restraining order.

L.I. and C.M dated, but never got married. Their relationship ended over twenty-seven years ago. Even though they were engaged, the engagement fell apart, and C.M. married someone else. A year and a half before the litigation at issue, C.M. contacted L.I. online, even though they did not have any contact for many years. He contacted her a couple times online, and then started text messaging her.

L.I. maintained that she told C.M to stop texting her, and to return to his own wife. However, she was not able to provide any text messages to support her contention, other than one where she told him to stop texting her because she was about to go to work. Certain text messages from November and December 2014 were read aloud by the court, and entered into the evidentiary record, which L.I. testified were unchanged. C.M did not challenge the authenticity of the text messages. The New Jersey Appellate Division found that many of the text messages were highly offensive. In the messages, C.M called L.I. a “liar,” “pig,” and “fucking skank.” C.M. also called her what the court simply described as the “b” word and the “c” word. It got so bad, L.I. had to get a different ex-boyfriend to step in and tell C.M. to leave her alone. Some of the admitted text messages, reflected an argument of threats between the two men.

L.I. alleged that C.M. sent more than 200 such text messages. He also sent her photos of him on vacation, as well as a photo of a back tattoo of her face that he got when they were still dating.

In regards to any past history of domestic violence, on the last St. Patrick’s day, C.M. and his wife confronted L.I. at a club, and she alleged that he lunged at her. She further alleged that his wife threatened to assault her. At that point L.I show his wife the text messages he had been sending her. At trial, L.I. alleged that was sitting in the hallway outside the courtroom the day before when C.M. came up to her and grabbed her, at which point sheriff officers had to get involved, even though no sheriff officers were called as witnesses.

C.M. denied the allegations that he lunged at L.I., or grabbed her arm, but he did not deny approaching her in the hallway. According to him, they had both kept friendly communications through text messages for many months. Moreover, he stated that L.I. never told him to stop texting her, but he did admit to sending her offensive text messages. He maintained that he was provoked by her friend’s texts, and that is the only reason he sent the offensive texts. At the end of trial, the court found that he was not a credible witness, and that six text messages, at a minimum, were sent with an intention to embarrass, harass, and make L.I. feel bad. The judge further stated that the only reason to send the offensive text messages was to harass L.I. Therefore, the court found that based on the text messages, L.I. had an established a predicate act of harassment. However, the court failed to make any specific findings about the past history of domestic violence.

C.M. appealed and argued: (1) there was not sufficient evidence to prove a finding of domestic violence; and (2) the court failed to implement the two-part test enumerated in Silver v. Silver, because the court did not contemplate if the final restraining order was needed to protect L.I. from “immediate danger or prevent further abuse.”

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.

New Jersey Statute 2C:33-4 states there are three different forms of harassment, but a finding of a purpose to harass is a vital element of each form. 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.

The New Jersey Appellate Division found that the trial court did not identify the provision of the statute that it based its judgment on. Because the trial court relied on the fact that C.M. sent L.I. over 200 text messages, the appellate panel determined that the judge must have relied on subsection a, “to 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.”  The New Jersey Appellate Division explained that this section actual focuses on the mode of speech used, not the content of what was said. A communication that does not invade another’s privacy by being anonymous, offensively coarse, or extremely inconvenient is protected speech.

A finding of repeated acts or a course of conduct must also be considered. The 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 New Jersey Appellate Division found that the predicate act of harassment did indeed occur because C.M. repeatedly used offensive and coarse language in the text messages he sent L.I. A purpose to harass could also be inferred by the temperament of L.I.’s attacks, his own admission that they were “nasty”, and the fact that he could not provide any evidence that his texts were provoked by L.I. Still, the appellate panel found that the judge did not consider the second prong of the Silver test. The court did not support the finding that a final restraining order was necessary to prevent future abuse, by specific findings about the history of domestic violence between L.I. and C.M. Therefore, the New Jersey Appellate Division ordered that the case be heard again at a new hearing.

If you are facing a domestic violence situation, please contact my office to learn more about how we may help you.