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

May a Final Restraining Order Be Denied In New Jersey When One Spouse Has Been Assaulted By The Other?

As a family law attorney, I am acutely aware that it is inevitable that during a marriage the parties will have arguments. Sometimes a fight could just involve yelling, whereas other times it could get physical. In the event that one party physically injures (i.e., assaults) the other, the victim will likely be entitled to get a restraining order. From a lawyer’s perspective, this is certainly the intent of New Jersey’s Prevention of Domestic Violence Act.  Yet, if the injury was minor and unintentional, a final restraining order will not likely be granted. An absence of a history of domestic violence also comes into play.  That was the case in the recent New Jersey Appellate Division decision of M.K.B. v. J.R.B.      

In the case the parties were married in 2001 and living together at the time of the incident that gave rise to the litigation. Both parties were retired; the wife was 70 years old and the husband 68. In December 2012 the husband had surgery for a liver transplant. A few months later in February 2013 when he got home from the hospital, he began to record his conversations with his wife. Although the wife claimed to still love her husband, the husband had secretly retained an attorney in October 2010 for the purpose of filing for a divorce.

On October 28, 2013 the wife was in the bedroom when he husband came to her door and said that somebody was there to see her. She did not answer since she was on the phone talking to her sister. However, the husband stated again that someone was there to see her. However, the second time he told her that somebody was there to serve her divorce papers and if she didn’t come out, they would send in state troopers. The husband opened the bedroom door, let the man in to serve her the divorce papers and then went downstairs.

At that point, the wife heard a recording of her voice playing downstairs. She approached her husband and asked him why he had been recording her. She also asked to hear the recording, but he laughed at her. Angry, the wife reached for the recorder and grabbed her husband’s wrist, scratching him with her fingernails before getting the recorder from him. She quickly ran back to her bedroom. When the husband came upstairs and asked for the recorder back, she claimed she tossed it out the window; however, when the husband went back down and outside to look for it, it wasn’t there.

Later on that day the husband left the house and stopped a police officer directing traffic to get some advice on what had just occurred. After talking to the husband, the officer relayed the information to his headquarters and two other officers reported to the home. They interviewed both parties and observed the scratches on the husband’s wrist. Additionally, the officers told the husband that he had the right to obtain a temporary restraining order, yet he declined to do so. However, one of the officers testified that based on the attorney general’s guidelines for domestic violence, the wife’s arrest was mandatory.

Thereafter, the wife was arrested and charged with simple assault; however, she was released a few hours later and returned home. During that time, her husband had changed his mind and filed the temporary restraining order like the officers told him to do. The next day on October 29th, the husband filed an amended temporary restraining order adding a claim that he “suffered mental abuse, which had been going on 10 months, ever since he had the transplant, and that is was non-stop verbal hollering.” Later that evening, the husband knocked on his wife’s bedroom door and asked her to move her car. When she got outside, there were three police cars and an officer served her with the restraining order, informing her that she had 20 minutes to leave the premises.

The next day on October 30th, the wife filed for and obtained a temporary restraining order against her husband for harassment and assault. She claimed that her husband kicked her when she tried to pry the recorder from his hands. The two requests for final restraining orders were consolidated and tried together.

The trial judge found no history of domestic violence between the parties. Rather the court believed that what had happened was simply a marital quarrel. However, the judge did find that the wife assaulted her husband when she put her hands on his wrist and “struck him with her nails.” The court noted that the husband was frail and still recovering from his surgery. Therefore, the court held that the husband’s injuries were “exasperated  and more extensive than would have been suffered if he wasn’t taking medication and been in such a delicate state.” Additionally, the court stated that the husband’s testimony was credible that he did not kick his wife.

On the other hand, the court found that not only did the wife assault her husband, but she also was not credible because she gave conflicting testimony. Therefore, the court dismissed the wife’s complaint. She appealed.

On appeal, the wife argued that the trial court erred in granting her husband the final restraining order. The New Jersey Appellate Court primarily looked to the Prevention of Domestic Violence Act for guidance. Pursuant to the act, before a final restraining order could be issued, the court would have to find that an act of violence occurred. Once the court determined that such act occurred, it would have to consider the history of domestic violence between the parties and the existence of immediate danger to the alleged victim.

As to the first part, the trial court found that the husband proved that his wife had assaulted him when she forcefully grabbed his wrist and scratched him with her fingernails. However, the Appellate Division believed that the wife did not intend to injure her husband when reaching for the recorder. Additionally, the New Jersey Appellate Division reiterated that there was no prior history of domestic violence between the parties. Instead, the court believed that the wife’s behavior was prompted by her husband taunting her by recording her conversations. Therefore, the New Jersey Appellate Division reversed the findings of the trial court and vacated the final restraining order entered on the husband’s behalf.  

The moral of this story, so to speak, is that “intent” is an essential element in order to find that someone has committed the crime of assault.  In this case, the wife did not intend on assaulting or injuring her husband.  Here, the husband with the tape recorder, which led to their struggle, was taunting the wife.  Therefore, on appeal, the court felt that the husband’s actions rose to a level that made the wife’s reaction “reasonable” and not a violation of New Jersey’s Prevention of Domestic Violence Act.  It is also vey important to note that there was not any history of domestic violence by either party (here, especially the wife having no history of domestic violence) was a major factor in the court dismissing the Final Restraining Order that the trial court had issued against her. 

If you or a loved one faces a domestic violence situation, please immediately contact my office to learn more about how my associate lawyers and I may best help you.  Thank you.