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Blum v. Blum


June 19, 2007


On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Essex County, No. FV-07-3307-06.

Per curiam.



Argued May 23, 2007

Before Judges Wefing and Messano.

Following a hearing, the trial court entered a final restraining order against defendant under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. At the same time, the trial court also declined to enter a final restraining order against plaintiff. Defendant has appealed from the order entered against her; she does not challenge the dismissal of her complaint against plaintiff. After reviewing the record in light of the contentions advanced on appeal, we reverse.

The parties were married in 1987 and had three sons, the oldest of whom is now seventeen years of age. The two younger boys are fifteen-year-old twins. At the time of the incident in question, May 2006, the parties were in the midst of contentious divorce proceedings, and the boys resided with defendant.

Two months earlier, in March 2006, defendant filed an assault complaint against plaintiff; they had gotten into an argument, and she alleged that he had pushed her and twisted her arm. The matter was tried in municipal court, and plaintiff was acquitted of assault. The parties did, however, agree to the entry of a consent order within the context of the pending matrimonial action. The pertinent provisions of this order follow.

2. The parties agree to be mutually enjoined and restrained from having any contact with the other or from making communication to the other, either directly or indirectly, and are further enjoined from harassing, molesting, maligning or disturbing each other in any manner, or having others contact each other, at any location, except that the parties may reasonably communicate via telephone or e-mail regarding their children or issues that may arise concerning the former marital home.

3. The parties are hereby mutually enjoined and restrained from entering the other party's residence or place of employment unless agreed upon between the parties in writing.

4. The parties' agreement to the within "civil restraints" shall raise no negative inference against either party regarding Plaintiff's within Domestic Violence Complaint, either party's credibility or the claims that either have or may have against the other in this matter or any matter that may arise.

The incidents giving rise to the parties' complaints occurred on May 13 and 14, 2006. The parties had earlier agreed to a visitation schedule under which the boys were to spend that weekend with their father. In light of the fact this was Mother's Day weekend, the parties agreed to a modification of that visitation schedule to permit defendant to pick up the two younger boys from their father's residence early on Saturday evening. Their older brother was not there because he was at a friend's house. There were a series of telephone calls back and forth about defendant picking up the boys; the parties disputed the nature of those calls, but that is not material to the issue before us.

Defendant picked up the two boys and stopped to get ice cream on the way to her home. After they left his home, plaintiff changed his clothes and went to a party to which he had been previously invited. Defendant testified that after they got the ice cream, the two boys wanted to return briefly to their father's house to retrieve posters he had purchased for them earlier in the day. One of the boys called their father to find out where he was; both parties agreed that plaintiff would not provide an answer and that he did not respond to subsequent calls from the boys. Defendant drove past one home where she thought plaintiff might be, but his car was not there. She then drove the boys to plaintiff's home, and they entered to get the posters. Defendant followed them into the house and admitted that she had investigated the contents of plaintiff's medicine cabinet because she suspected that plaintiff was misusing drugs.

While she was in the house, one of the boys sent a text message to plaintiff telling him of defendant's presence in the home and that plaintiff should return home. Plaintiff left the party he had been attending and called the local police department, explained the situation and asked that they meet him at the house.

Defendant, apparently aware that plaintiff had been alerted, left the house and drove around the block, waiting, she said, for the boys to get their posters. When she arrived back at the house, plaintiff and the police were there. Later that evening, plaintiff obtained a temporary restraining order, alleging that defendant, in entering his home, had committed an act of criminal trespass, one of the predicate acts under the domestic violence statute. N.J.S.A. 2C:25-19. The trial court found that defendant had committed an act of domestic violence and entered the order under appeal.

Defendant presents several arguments on appeal, including that the trial court erroneously permitted the admission of hearsay evidence and that she was erroneously denied pretrial access to the police reports that had been prepared following this incident. We find it unnecessary to address these contentions because we are satisfied that defendant's conduct on the evening of May 13, while it may have violated the terms of the consent order previously entered, did not constitute an act of domestic violence.

We have previously noted that it is clear that the drafters of the law did not intend that the commission of any one of these acts automatically would warrant the issuance of a domestic violence order. The law mandates that acts claimed by a plaintiff to be domestic violence must be evaluated in light of the previous history of domestic violence between the plaintiff and defendant including previous threats, harassment and physical abuse and in light of whether immediate danger to the person or property is present. N.J.S.A. 2C:25-29a(1) and (2). This requirement reflects the reality that domestic violence is ordinarily more than an isolated aberrant act and incorporates the legislative intent to provide a vehicle to protect victims whose safety is threatened. [Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995).]

The purpose behind the domestic violence law is "to address matters of consequence, not ordinary domestic contretemps." Id. at 250. It is the threat of danger to person or property that transforms acts from domestic contretemps into acts of domestic violence.

Plaintiff candidly admitted in his testimony that he does not feel physically threatened by defendant. He also admitted that the only reason he summoned the police that evening was not to protect himself against defendant but to prevent defendant from claiming that he committed an act that constituted domestic violence.

We recognize that an isolated act may constitute an act of domestic violence if there is a history of such abuse between the parties. The trial court, in the course of its oral opinion, stated "[t]his Court knows there is a history of alleged domestic violence between the parties." However, the only prior incident mentioned in the parties' testimony was that of March 6, 2006, in which defendant claimed that plaintiff committed domestic violence against her by pushing her and twisting her arm. We consider it anomalous to permit an ultimately unsuccessful claim that plaintiff committed domestic violence against defendant to be used to justify entry of a subsequent final restraining order against defendant.

The trial court was undoubtedly distressed, as are we, at the inability of these parties to keep their emotions in check and to shield their children from their unfortunate and unending squabbles. Protecting the children from their parents' emotional outbursts, however, must be achieved within the context of their matrimonial litigation, not by entry of a final domestic violence restraining order.

The order under review is reversed.


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