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

No Final Restraining Order When The “Victim” Violently Provoked The Incident

As an attorney in East Brunswick, New Jersey, the first thing I do when I meet with the victim of domestic violence is collect all of the facts in a very specific matter. Many times the lawyers at my law firm shall make a diagram so we know who was exactly where everyone was situated in order during the incident in order to evaluate the case for a Final Restraining Order trial.  Recently, a case came down in Ocean County, Family Part, Superior Court of New Jersey, in which the victim (a man) wrenched a cell phone from his girlfriend’s hand against her will.  His girlfriend then responded by throwing a brick at his car.  While the Court did not support this action on her part, the court did not believe that the boyfriend was truly afraid of the defendant as she had mad a reflex and emotional reaction due to the plaintiff’s violent provocation of the incident (i.e., taking away her cell phone against her will).  Therefore, the temporary restraining order was dismissed.  Following please find this lawyer’s legal analysis.  

In the very recent case of R.C. v. R.W., the Superior Court of Ocean County were tasked with answering the question: What happens when someone seeks a final restraining order against another for conduct that arose from that persons own violent provocation? In tackling this complicated question, the court established that a party’s violent provocation is a relevant factor the court must consider when deciding whether or not to grant or deny a final restraining order under the two-prong test of Silver v. Silver. This is especially true when the reaction to violent provocation was immediate, instinctive and impulsive rather than planned and premeditated, proportionately no more violent the initial actions of the party seeking the final restraining order whose own violence initiated and provoked the altercation, there is insufficient evidence of substantial harm, and the defendant has no significant history of violence.

R.C. and R.W. dated for four years and had two children within that time. They lived together in an apartment during the last two years of their relationship. During this time together, R.C. worked and supported their joint household financially, while R.W. cared for the children and attended school to become a dental technician. At their home the couple had two cars, a Buick and a Nissan. While both cars were technically in R.C.’s name, R.W. had exclusive use of the Buick while R.C. had exclusive use of the Nissan. Both R.C. and R.W. contributed toward the purchase of the Buick, with R.W. using her tax refund toward payment of her share. They also jointly shared two cell phones, and a Sony Playstation.

However by June 2015, the couple’s relationship seriously deteriorated. It came to a point were R.C. earnestly wanted R.W. to physically move out of the apartment. R.C. admitted that he tried to force her to move out by intentionally cutting off and terminating electrical service, basically leaving the apartment uninhabitable. His plan worked, and R.W. logically decided that she could not keep the children living in the apartment in such abhorrent conditions. R.W. packed her belongings and the children into the Buick, moved out of the apartment, and relocated across town to her mother’s house. When she left, R.W. took the cell phone that she exclusively used, and other miscellaneous items, including the Playstation for the children to use.

After she left, R.W. did not seek any formal child support from R.C., nor did she take any immediate legal action to obtain an order for the same. Similarly, R.C. did not file any legal action contesting R.W.’s continued care of the children, or her ongoing possession and use of the Buick, cell phone, and the Playstation. Actually, R.C. moved out of the apartment himself soon thereafter, and moved into his cousin’s house nearby. R.C. had parenting time with the kids on certain weekends, by joint consent. The visitations would took place at R.C.’s father’s house, the paternal grandfather of the children. This mutually agreed to arrangement suited both parties at the time, but this amicability would not last.

On Sunday, July 12, 2015, things changed for the worse when R.C. came to R.W.’s home to drop off the children at the end of his parenting weekend. The children went inside, but R.C. remained outside to talk to R.W. He suspected that she was involved with another man. To prove his suspicions he forcibly grabbed R.W.’s cell phone, reviewed her information and discovered that she had in fact, been having continued communications with another man. R.C. became inflamed and called the mother of his children a “whore.” He then went over to the Buick and used the key he still had and opened the trunk. He saw that Playstation was still inside. He stated that he no longer consented to her keeping the Playstation for the kids, and that he no longer wanted her to drive the Buick either. He noticed several large cinderblock bricks on the ground, picked one up, and in front of R.W. threw the brick through the Buick’s rear windshield, shattering the entire thing.

R.W. impulsively picked up a smaller brick and threw it, and the Playstation at the Nissan, causing damage to the body of the car. In retaliation R.C. then picked up more bricks and threw them through the Buicks closed windows and front windshield. The car was rendered un-drivable. Even though R.C. had been the one who started the brick-throwing, he still had the audacity to file a domestic violence complaint against R.W. alleging criminal mischief in damaging his Nissan. He sought a restraining order pursuant to New Jersey Statutes 2C:17-3, and 2C:25-19. R.C. argued that his brick throwing was legal because he was the technical owner of the Buick, but R.W.’s similar response was not appropriate because the Nissan was in his name as well. In addition to seeking a restraining order, he now also sought custody of the children under New Jersey Statute 2C:25-29, which provides that a court can grant temporary child custody to a victim of domestic violence.

There are multiple acts which constitute domestic violence. Criminal mischief is one such act, and occurs when a party “purposefully or knowingly damages tangible property of another.” At first glance one might conclude that since R.W. intentionally threw a brick at R.C.’s Nissan, such conduct technically violated New Jersey Statute 2C:17-3. However, the court noted that the current case was far more complicated and nuanced. Consideration of the factual circumstances, and well as the spirit and public policy reasons for the Prevention of Domestic Violence Act lead the court to a conclusion that the issuance of a final restraining order would be unjust and against the purpose and logic of the Domestic Violence Act.

In the 1995 case of Corrente v. Corrente, The New Jersey Appellate Division established that an alleged act of violence does not automatically mandate a final restraining order. The court must also find that a restraining order is necessary to protect the victim from future harm. The landmark New Jersey Appellate Division case of Silver v. Silver, took that reasoning a step further, and established a two-part test to determine if a final restraining order should be entered. First, the trial judge must determine if a predicate act of domestic violence has occurred, in light of the previous history of violence between the parties. Then, the court must decide whether there is an immediate danger to person or property that warrants a final restraining order.

The Superior Court of Ocean County applied the Silver test and found that as a matter of law and basic fairness, the court must determine, under the totality of the circumstances, if R.C. needed a final restraining order to protect him from future harm. The court took all the facts into consideration and found that R.W.’s reaction to violent provocation was immediate, instinctive and impulsive rather than planned and premeditated, proportionately no more violent the initial actions of R.C., whose own violence initiated and provoked the altercation, there was insufficient evidence of substantial harm, and R.W. had no significant history of violence. While R.W.’s throwing of a brick and Playstation at R.C.’s car was wrong, it did not rise to a level of violence the required the entry of a final restraining order. To grant a restraining order in this case would be against fairness and equity, and it would in fact be a misuse of the Domestic Violence Act. For more information on this issue, please contact my office today.