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

In New Jersey, Is Destroying Property During An Argument Domestic Violence?

Many times, Judges of the Family Part of the Superior Court of New Jersey convert temporary restraining orders into final restraining orders so as to protect victims of domestic violence. Many folks are surprised when they learn that many restraining orders are issued without an actual physical assault taking place at the time that the domestic violence occurred. As the attorneys at my law firm all understand, destruction of property during an argument is also a violation of New Jersey’s Prevention of Domestic Violence Act. This can range from punching a hole in the wall to smashing the other’s cell phone on the ground. That is why it is so important to have an attorney that only handles family law related matters, including restraining order trials. The recent case of N.T.B. v. D.D.B, represents a unique situation where a husband was ultimately found to have committed an act of domestic violence when he destroyed joint marital property.

In N.T.B. v. D.D.B., the Appellate Division had to determine whether a spouse’s destruction of a door in the couple’s jointly owned marital home constituted the act of criminal mischief, and supported a finding of an act of domestic violence under New Jersey's Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to 35. The case originated from two domestic violence disputes between N.T.B, the husband, and plaintiff, and his wife, D.D.B. The husband had destroyed audio speakers located in the bedroom and later broke down the bedroom door. After he broke the bedroom door, his wife struck him in the face. Both parties filed cross-complaints that alleged domestic violence. At trial the Family Part judge denied the wife’s request for a final restraining order. Conversely, the judge granted the husbands request and entered a final restraining order against the wife to protect him from future abuse.

The wife appealed and argued that the trial judge wrongly held that the husband’s destruction of the speakers did not amount to criminal mischief because the speakers were not the “property of another.” She further contended that the judge incorrectly determined that the husband’s conduct was insufficient to establish “harassment” under New Jersey Statute 2C:33-4. Finally she challenged the sufficiency of the evidence supporting the trial judge’s conclusion that she committed an act of simple assault under New Jersey Statute 2C:12-1(a), which involved domestic violence supporting the entry of a final restraining order against her.

The parties married in in March 2012. Before the marriage, the husband had obtained a temporary restraining order against his future wife after she burned him with a curling iron. Still the parties married. The couple lived together with their eight-year-old daughter in a jointly owned home. The husband filed for divorce in December 2013, and as of March 2014, the spouses were sleeping in separate bedrooms within the marital home. The night of March 30, 2014, the wife was listening to music in her bedroom. The husband became agitated at the volume of the music, and told her to lower it. She refused, at which point the husband entered the room and poured orange juice on speakers.

The next night, the parties were arguing in the living. The wife left and went to her bedroom with her daughter and locked the door. The husband broke the door down by slamming his body against it. The wife contended that her then husband prevented her from leaving the room. To get around him and out of the room, the wife stated that she slapped him in the face. The husband denied obstructing the wife’s path, and claimed that she actually punched him. At court, the judge denied the wife’s request for a final restraining order and concluded that she failed to meet her burden of establishing domestic violence by a preponderance of the evidence because the speakers and the bedroom door where within the marital home that was shared by both parties, and both appeared to be marital property, and thus not the “property of another,” required by New Jersey Statute 2C:17-3. 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.

In regards to the husband’s request for a final restraining order, the judge held that he proved by a preponderance of the evidence that defendant struck him in the face, by either slap or punch. The judge also determined that a final restraining order was necessary to protect the husband from future acts of domestic violence. The judge concluded that the history of the wife’s violent behavior, demonstrated by her earlier act of burning him with a curling iron, completely supported the entry of a final restraining order.

Domestic violence describes a pattern of abusive and controlling behavior that injures its victim. 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. The law requires that acts claimed by the victim to be domestic violence must be reviewed in light of the previous history of domestic violence between the spouses, including previous threats, harassments and physical abuse. Furthermore the court must determine whether there is a present and immediate danger to the person. This reflects the idea that domestic violence is usually more than just an isolated act, but rather a pattern of abuse.

The Prevention of Domestic Violence Act incorporates certain criminal offenses, including criminal mischief, to constitute domestic violence, in the interest of protecting victims and to give family court judges broad discretion in ordering remedies. To order a final restraining order, a judge must engage in a two-step analysis. First, that the predicate act occurred, and that that a restraining order is necessary to prevent the same act from occurring again.

Under New Jersey Statute 2C:17-3(a), someone is guilty of committing criminal mischief if he or she intentionally damages “property of another.” In N.T.B v. D.D.B, the husband did damage the door and speaker. The Appellate Division was left to decide whether the same property constituted “property of another” under the criminal mischief statute. The appellate panel found that because the parties had a separate and distinct interest in the home, the husband did damage “property of another,” when he broke down his wife’s door. The panel found that to conclude otherwise who permit a spouse to maliciously destroy his or her jointly-owned marital property. The court could not allow just a result. In addition, the Appellate Division did not agree with the trial judge’s determination that pouring orange juice on the speakers and throwing them in the toilet did not establish criminal mischief. Therefore, the appellate court reversed the judgment of the trial court and ordered a new trial. The court noted that upon remand the Family Part judge should make specific factual findings regarding when, how and by whom they were purchased. The purpose of these findings is to determine whether the husband had any propriety interest in them.

If you or a loved one finds themselves involved in a domestic violence situation, please contact my office today. Thank you.