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State v. Washington

August 31, 1998


The opinion of the court was delivered by: Moynihan, J.S.C.

A Final Restraining Order was issued on August 7, 1995, in the matter of V.H. v. Fred Washington. The court took judicial notice of that order including the provisions that prohibited defendant, Fred Washington, from having any contact with plaintiff, V.H., prohibited him from committing any future acts of domestic violence and barred him from going to plaintiffs residence. Defendant was personally served with a copy of the restraining order on August 7, 1995.

The warrant now before this court charges that the defendant violated N.J.S.A. 2C:29-9a and 2C:33-4 on May 10, 1998. Testimony by V.H. revealed that on that date defendant called her at home and spoke with V.H.'s son's grandmother who had answered the phone. Apparently, defendant said something to the woman which prompted V.H. to call a friend of Fred Washington to have that friend contact the defendant and tell him to stop the calls, and that V.H. would call the police if the calls continued. There is no testimony that revealed any actions taken by Fred Washington's friend. Nonetheless, defendant called V.H.'s home twice more and the two "exchanged words." V.H. told the defendant to stop calling her house and that he had no right to speak with her son's grandmother in the manner which he spoke. V.H. said that defendant never said why he called the first time.

Ten minutes after the second telephone conversation between V.H. and Fred Washington, at 2:30 p.m. or 3:00 p.m., defendant appeared at V.H.'s door. She saw the defendant through the window. He did not speak with anyone at the house and left without incident.

The police arrived approximately fifteen minutes later. Officer David A. Thomas of the Plainfield Police Department was dispatched at around 4:20 p.m. and arrived at V.H.'s residence about five minutes later. Defendant was on the phone with V.H. when the officer arrived. V.H. handed the telephone to Officer Thomas who attempted to converse with the person on the other end. That person denied that he was defendant, called for defendant aloud and told the officer that Fred Washington was not there and hung up the phone. The officer, however, recognized defendant's voice. Contrary to V.H.'s recollection, Officer Thomas testified that he did not see V.H.'s "caller ID" that showed, according to V.H., defendant's home number. Nonetheless, there is sufficient credible evidence to find that defendant did telephone V.H.'s home and spoke with her. The two calls during which defendant and V.H. had "words back and forth" was certainly a violation of the restraining order's prohibition against such contact. V.H., after having a six year relationship with defendant, easily recognized his voice. Moreover, Fred Washington violated the order when he arrived at V.H.'s doorstep. V.H. saw him through the window shortly after they ended their conversation.

Although the court does not find there is sufficient evidence to find that defendant made calls from various phone booths in Dunellen after his conversation with Officer Thomas, the court is satisfied that defendant violated those provisions in the restraining order which prohibited any contact with V.H. and that barred him from her residence. Defendant well knew that the restraints were still in effect. Fred Washington was duly served with a copy of the restraining order. Defendant asked V.H. if she would apply to dismiss the restraints. V.H. testified that she and defendant had an agreement that she would not call the police as long as he remained calm and in control. Defendant tried to conceal his identity from Officer Thomas when the officer tried to converse by phone with Fred Washington at V.H.'s home. There is no doubt that Fred Washington knew about the restraints and that he knew he was violating the restraining order on May 10, 1998.

Defendant contends that there is sufficient cause to dismiss the order retroactive to October, 1996, when Fred Washington and V.H. started to cohabit. He argues that after the issuance of the restraining order, the two lived together, had multiple mutual acts of sexual intercourse, went to Jamaica and had a great deal of contact with each other.

Defendant cites Mohamed v. Mohamed, 232 N.J.Super. 474, 557 A.2d 696 (App.Div.1989), Torres v. Lancellotti, 257 N.J.Super. 126, 607 A.2d 1375 (Ch.Div.1992), and A.B. v. L.M., 289 N.J.Super. 125, 672 A.2d 1296 (App.Div.1996) as support for his position.

Neither the court nor counsel have found any New Jersey case directly on point to support or oppose defendant's contention that a reconciliation between the parties to a restraining order can vitiate that restraining order so as to serve as a defense to a charge of contempt for violating same. In fact, a 1993 Hofstra Law Review article singled out New Jersey as the only state where reunification was a reason to justify removal of a restraining order. Providing Legal Protection for Battered Women: An Analysis of State Statutes and Cases, 21 Hofstra L.Rev. 801, 1115 (1993). The cases cited by defendant address the issue of reconciliation in a civil context, not a criminal one. However, no reported case has addressed reconciliation in a quasi-criminal matter.

Our courts, even in civil cases, have discerned that "it would be unwise and improper to automatically vacate an order issued on a domestic violence complaint upon a reconciliation or mutual violation without further analysis." See Torres, supra at 129, 607 A.2d 1375. Judge Baime, in A.B., supra at 130-31, 672 A.2d 1296, found:

A rigid rule requiring the vitiation of domestic violence orders based on a finding of reconciliation regardless of the circumstances would deny victims meaningful access to the protection of the judicial system.

Such a rule would also defy reality. We have repeatedly recognized that domestic violence constitutes a "pattern of abusive and controlling behavior which injures its victim[s]," Corrente v. Corrente, 281 N.J.Super. at 246, 657 A.2d 440; Peranio v. Peranio, 280 N.J.Super. at 52, 654 A.2d 495, and usually involves "a course of threatening behavior conducted over a period of time." D.C. v. F.R., 286 N.J.Super. at 608, 670 A.2d 51. The 1991 Act itself implicitly recognizes this phenomenon in its requirement that claims of domestic violence be analyzed in light of "[t]he previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse...." N.J.S.A. 2C:25-29a(1). The sad fact is that apparent reconciliation between people with a long history of domestic violence seldom marks the end of their difficulties.

The court then went on to outline the procedure that should occur when considering an application to dismiss a restraining order after an alleged reconciliation of the parties thereto:

When confronted with a party's request to vacate a domestic violence order on the ground of reconciliation, the court should closely scrutinize the record to determine whether there is a likelihood that violent conduct will be repeated. The court should carefully consider the factors set forth in N.J.S.A. 2C:25-29a before removing the shield of protection afforded by the restraining order. See Torres v. Lancellotti, 257 N.J.Super. at 131, 607 A.2d 1375; cf. Carfagno v. Carfagno, 288 N.J.Super. at 436, 672 A.2d at 757 (setting out factors which court should consider when faced with an application to dissolve a domestic violence order for reasons other than reconciliation of the parties). [ Id. at 131, 672 A.2d 1296.]

The court is cognizant of C.O. v. J.O., 292 N.J.Super. 219, 678 A.2d 748 (Ch.Div.1996), which held that a reconciliation acts as a de facto removal of a restraining order. This court is of the opinion that that case is inapplicable. C.O., is a civil case. This is a quasi-criminal action. Here the issue is whether the State proved beyond a reasonable doubt that the defendant knowingly violated a provision of a restraining order.

This court does not believe that the conduct of parties to a domestic violence order can serve as a defense to a contempt charge. Courts must control the operation of their own orders. An order of a court must be obeyed unless and until a court acts to change or rescind it. See State v. Roberts, 212 N.J.Super. 476, 515 A.2d 799 (App.Div.1986).

In contempt proceedings, "the primary consideration is vindication of the authority of the court." In re Adler, 153 N.J.Super. 496, 501, 380 A.2d 298 (App.Div.1977). Quoting the trial judge, the Adler court continued, " 'for the continuation of our society in its present form court orders must be obeyed.' " Id. "Therefore the ...

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