On appeal from Superior Court of New Jersey, Chancery Division-Family Part, Essex County, No. FV-07-3307-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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, ...