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

May I Obtain A Restraining Order For Stalking If My Husband Places A Tracking Device On My Car?

            Yes.  Under New Jersey law stalking occurs when someone knowingly or purposefully engages in conduct directed as a specific person that would cause a reasonable person to fear for his or her safety, or suffer other emotional distress.

For both lawyers and judges of the Superior Court of New Jersey, stalking cases are always quite fact sensitive and require many details in order to determine if the behavior arises to a violation of New Jersey’s Prevention of Domestic Violence Act.  In the case below, the New Jersey Appellate Division found that there was more than enough evidence in the record to support the Family Part judge’s finding that R.T.B. was stalking L.E.B, as he had followed her on at least two occasions. On one occasion, he followed her in his car and even ran a red light to keep up with her, and on another occasion he used a tracking device to monitor her whereabouts.

            In L.E.B. v. R.T.B., ex-husband R.T.B. appealed a final restraining order dated June 24, 2015, that was entered against him by the Superior Court of New Jersey, Family Part of Union County, under New Jersey Statute 2C:25-17 to -35, the Prevention of Domestic Violence Act. After a thoughtful review, the New Jersey Appellate Division affirmed the Family Part’s decision.

            During the hearing for the final restraining order, the judge took testimony from both R.T.B. and the victim L.E.B., his then wife, R.T.B.’s friend, and two police officers. In addition, the judge heard recordings of R.T.B. saying profanities to his then wife, and repeatedly being verbally abusive to her. As such, the judge found that R.T.B. committed two predicate acts of domestic violence under the Prevention of Domestic Violence Act: harassment under N.J.S.A. 2C:25-19(a)(13), and stalking under N.J.S.A. 2C:25-19(a)(14). Furthermore, the judge concluded that a final restraining order was necessary to protect L.E.B. from future acts of domestic violence.

R.T.B appealed the final restraining order and argued that L.E.B. failed to provide sufficient evidence that would warrant the entering of a final restraining order. He claimed the Family Part judge commit error by finding that he stalked and harassed L.E.B. Alternatively, he argued that even if he did commit the predicate acts, the final restraining order was still unnecessary to protect L.E.B. The New Jersey Appellate Division reviewed the issue and stated that R.T.B.’s arguments lacked merit.

In cases of domestic violence, and reviewing appellate court must give substantial deference to the findings made by a Family Part judge. Such findings will be binding on appeal as long as they are supported by substantial, adequate and credible evidence. Because a trial court hears the case, sees and observes the witnesses, and hears them testify it has a better perspective in evaluating the credibility of witnesses. Therefore a trial court's factual findings and legal conclusions should not be disturbed by a higher court without a showing that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice. Moreover, Family Part courts has a special expertise in domestic relations, and appellate courts must give their fact finding special difference.           

Judicial deference to the Family Part is especially warranted when the majority of the evidence is testimonial in nature, and involves credibility determinations. In L.E.B. v. R.T.B., the Family Part judge did not believe testimony of the party accused of domestic violence. Therefore, the New Jersey Appellate Division stated that they would not disturb the Family Part judge’s factual findings, and the legal conclusions that stemmed from them, unless they were convinced that the legal conclusions and factual findings were so clearly unsupported by or inconsistent with the relevant, competent, and reasonably credible evidence that they offended the interests of justice.

The New Jersey Appellate Division explained that domestic violence happens when an adult or emancipated minor commits a predicate act of domestic violence against a person protected by the Prevention of Domestic Violence Act. In any determination as to whether a final restraining order should be entered under the Prevention of Domestic Violence Act, a Family Part judge must conduct a two-part analysis. First, the judge must find that the party claiming domestic violence has proved, by a preponderance of the evidence, that one or more predicate acts of domestic violence, defined by N.J.S.A. 2C:25-19(a) has actually occurred. Then, only after the victim has proved that the perpetrator has committed one of the predicate acts, the judge must consider if a final restraining order is necessary to protect the victim from further abuse.

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. 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.

Some of the remedies provided by the statute are the exclusion of the offender from the marital home, suspension of visitation, monetary relief to the victim, and mandatory counseling. To ensure that victims of domestic violence who were subjected to criminal conduct by their mates had complete access to protection under the legal system, the domestic violence statute incorporated the statutes for homicide, assault, terroristic threats, kidnapping, criminal restraint, false imprisonment, sexual assault, criminal sexual conduct, lewdness, criminal mischief, burglary, criminal trespass, and harassment.

Even though the previous statutes were incorporated into the domestic violence statute that does not necessarily mean that any one of these acts would automatically issue a domestic violence order. 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. Even though a court is not obligated to find a past history of abuse to conclude an act of domestic violence has occurred, a court must still consider that factor in its analysis. Thus, not only may a court find that one sufficiently egregious act may constitute domestic violence even if there is no history of past violence, but a court may also conclude that an ambiguous incident qualifies as an act of domestic violence, based on the fact that the parties have a history of violence. 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.

According to New Jersey Statute 2C:33-4, harassment is defined as when a person: makes a communication anonymously or at inconvenient hours, in an offensive manner or any other manner likely to cause annoyance or alarm; strikes, kicks, shoves, or threatens to do so; engages in any other alarming conduct or repeatedly commits acts with the purpose to alarm or seriously annoy the other person; or commits a crime of the fourth degree, acting with ill will, hatred or bias, with a purpose to intimidate based on the other person’s race, color, religion, sexual orientation or ethnicity. Moreover, harassment requires that the perpetrator acted with an intent to harass the victim. In determining a perpetrator’s intent, a judge may use common sense and experience. The New Jersey Appellate Division stated that there was adequate substantial evidence to support the Family Part judge’s finding that R.T.B. harassed L.E.B. His actions were continuous and were done with the intent to annoy her.

The judge rightfully concluded that the evidence overwhelming warranted a final restraining order. Many times L.E.B. barricaded herself in her bedroom, and at the hearing she played recordings of her gasping for breath and being afraid. The New Jersey Appellate Division    held that the Family Part judge rightfully found that R.T.B. had instilled fear into L.E.B., and that he suffered from anger management issues that warranted therapy and a psychiatric examination. Therefore, the appellate panel found that a final restraining order was necessary to protect L.E.B. from R.T.B., and affirmed the decision of the Family Part.