Edward R. Weinstein, Esq.Edward R. Weinstein, Esq.

If A Final Restraining Order Contains Financial Support For The Victim, It Is Temporary In Nature

In my twenty year career as a lawyer, both my associate attorneys and myself have had many had judges of the Superior Court of New Jersey enact Final Restraining Orders. At that point, under New Jersey law (The Prevention of Domestic Violence Act) the court may then order temporary support for the victim and well as any children who may be involved in the relationship.  However, the operative word here is “temporary.”  This is because the defendant may file a subsequent application to reduce the support being paid.  This gives your lawyer a much better chance to demonstrate to the court what a “fair” and more accurate support amount should be.  It is important to note that the amount of support is mandatory as stated in the final restraining order until the defendant makes an application to a New Jersey Family Court and that motion is heard.  The following case is a solid illustration of this legal reality.   

In Mugan v. Mugan, a husband sought review of an order of the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, that entered a final restraining order under the Prevention of Domestic Violence Act, New Jersey Statute 2C:25-13(b). This final restraining order barred the husband, Alan Mugan, from the marital home or from having any sort of contact with his wife. The order further required to make weekly payments to his wife and pay certain expenses. Alan attacked the judgment of the trial court based on the grounds that support for the victim was not a loss suffered as a direct result of the act of domestic violence, and thus, was not authorized by the Prevention of Domestic Violence Act. The court did not agree, and held that when a husband’s acts of violence result in his removal from the marital home, and bar him from having contact with his wife, this may have caused her to lose the funds necessary to maintain herself and the house. The New Jersey Legislature did not intend for the victims of domestic violence to be discourage by a threat of financial distress. The New Jersey Appellate Division affirmed the trial court’s judgment and ordered him to make weekly payments to his wife and pay certain expenses. 

On October 22, 1987 the Chancery Division, Family Part, entered a final order under the Prevention of Domestic Violence Act. This order required payment of $ 120 per week as well as well as household, medical, dental, mortgage and utilities expenses. Alan appealed from that final order as well as an order dated January 19, 1988 denying his motion to set aside the earlier order. He maintained that the Act does not authorize the support orders entered. He likened the provisions to pendent lite orders in divorce proceedings. Pendente lite is a Latin term meaning "awaiting the litigation" or "pending the litigation" which applies to court orders which are in effect while a matter, such as a divorce, is pending.

New Jersey Statute 2C:25-13(b) states that an order requiring the defendant to pay the victim money damages for losses suffered as a direct result of the act of domestic violence. Compensatory losses may include, but are not limited to, loss of earning or support, out-of-pocket losses for injuries sustained, moving expenses, reasonable attorney’s fees and compensation for pain and suffering. When appropriate, punitive damages may be awarded in addition to compensatory damages. 

Alan argument was based on the grounds that support for the victim is not a loss suffered as a direct result of the act of domestic violence and is not authorized by the statute. The New Jersey Appellate Division disagreed and stated that when a defendants violent acts result in his removal from the marital home and from barred contact with his wife, this might cause the wife to lose funds necessary to maintain herself and the house. These consequences are a direct result of the removal. The fact that the New Jersey Legislature did not intend the victims of domestic violence to be discouraged by a threat of financial distress is made very clear in all the powers granted by New Jersey Statute 2C:25-13(b). The New Jersey Appellate Division stated that in analyzing a statute, words must be considered in the context of the entire statute, and given a common sense meaning which advances the legislative purpose. The Prevention of Domestic Violence Act permits provision for any ongoing expenses which may remain unpaid during the period of the restraint. Still, the support order authorized by the Act is intended to bridge the current situation and not to be a substitute for other more orderly procedures for support. Nor does it create support obligations which did not exist before. The New Jersey Appellate Division affirmed the order of the trial court. 

In Federow v. Federow, a husband sought review of the judgment of the Superior Court of Monmouth County that held that he was in arrearage of spousal support owed to his wife. George was ordered to pay $ 75.00 per week in spousal support to his wife, Sophia, under the authority of the Prevention of Domestic Violence Act. He was also served with a notice of motion to enforce litigant’s rights and, after a hearing, the motion judge found that an arrearage of $ 12,005.00 was owed to Sophia. George failed to take action sufficient to protect his rights, either during the six-year pendency of the order or in contemplation of the hearing on the probation department’s motion. The court affirmed the judgment and held that in the absence of a cross-motion to vacate, modify or adjust, on notice to the adversary, an enforcement proceeding was not the place for raising issues concerning one party’s support needs or the other party’s support obligations. The court held that the motion judge conducted a hearing completely appropriate to the questions before him on the enforcement motion and determined, based upon substantial evidence in the record, that there were no grounds for excusing George from discharging his accumulated court-ordered obligation. The New Jersey Appellate Division affirmed the judgment of the trial court.

On February 18, 1985, in a final order under the authority of the Prevention of Domestic Violence Act, George Federow was ordered to pay $ 75.00 per week in spousal support to Sophia Federow. On March 20, 1991, the Monmouth County Probation Department served George with a notice of motion to enforce litigant’s rights. After the hearing, a motion judge found that George owed a balance of 12,005.00 in spousal support. Furthermore, the court found that George had the financial ability to pay this amount because he had a net worth of approximately $ 750,000.00. A judgment was entered for $ 12,005.00, along with an order for payment within thirty days upon failure of which a bench warrant would issue. The $ 75.00 per week support order was continued on two-week warrant status.

The New Jersey Appellate Division cited Mugan v.Mugan, in which it held that spousal support is an available remedy under the Prevention of Domestic Violence Act. George countered and focused on the caveat in the case in which the court articulated that the support order authorized by the act is intended to bridge the current situation and should not be a substitute for other more orderly procedures for support. It also does not create support obligations that did not exist before. Contrary to George’s argument this is not to be taken as a basis for automatic cancelation of the spousal support obligation after a period of time has expired. An order had been entered that required George to pay $ 75.00 per week. Rather than moving to have that order vacated or modified, George chose to ignore  it for nearly half of the period from the date of its entry until the date of judgment on the arrearage. Eventually, the Monmouth County Probation Department, which had the responsibility to collect on behalf of the plaintiff, filed its motion to enforce litigant’s rights. 

The payor on an order for spousal support entered in an emergent situation without detailed evaluation of the financial resources or circumstances of the parties, should be able to get a fuller consideration of relevant factors without great difficulty, merely by moving for vacation or modification of the order. A payor cannot simply assume the obligation will disappear if it is ignored long enough. Support orders are entered with the expectation that they will be obeyed. Systems are in place for their enforcement when someone does not comply. It its mandatory on a party against whom an order is entered to take some sort of step to deal with it, either by discharging the obligation or by moving for relief from the order. The order of the trial court was affirmed. 

Please contact my office if you or a loved one faces or already has a restraining order in place.