On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FV-20-000550-10.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 1, 2010 - Decided Before Judges Gilroy, Ashrafi and Nugent.
Defendant-ex-wife, P.R.R., appeals from a final restraining order under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, entered against her after trial. She contends that plaintiff-ex-husband, W.A.W., failed to meet his burden of proving the two-part test for entry of a restraining order as set forth in Silver v. Silver, 387 N.J. Super. 112 (App. Div. 2006). We agree and reverse.
In Silver, we held that a judge considering a complaint for a domestic violence restraining order has a "two-fold" task: first, the judge "must determine whether the plaintiff has proven, by a preponderance of the credible evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19a has occurred"; and second, "whether the court should enter a restraining order that provides protection for the victim." 387 N.J. Super. at 125-26 (citation omitted).
Cognizant of our limited scope of review, Cesare v. Cesare, 154 N.J. 394, 413, 416 (1998), we conclude that plaintiff did not prove the second part of the Silver test. In the particular circumstances of this case, the trial court should have considered the efficacy of a consent order that had been entered in the parties' matrimonial case to prevent future acts of harassment by defendant. Consideration of that evidence, in the context of no prior history of domestic violence by defendant and the isolated nature of the harassing conduct in this instance, leads us to conclude that a domestic violence order was not needed to protect plaintiff against the risk of future harassment.
Much of the evidence at trial was not disputed. The parties were married in 1998. They did not have children. In October 2007, defendant-wife was granted a domestic violence final restraining order against plaintiff-husband. That order remained in effect at the time of trial in this matter. On May 18, 2009, a dual final judgment of divorce was entered incorporating a property settlement agreement (PSA) negotiated through the parties' attorneys. The PSA as executed was prepared in typewritten form, but it also contained several handwritten paragraphs, including paragraph 27 providing that the parties would "not disclose or discuss this case" or "outof-Court statements, in the parties' Final Restraining Order" except with their attorneys.
On the morning of May 18, 2009, before arriving at the courthouse for the matrimonial case, defendant placed in the mail three letters addressed to persons that were related to or associated with plaintiff. The letters made accusations and gave warnings of plaintiff's alleged violent proclivities. They recounted specific acts of violence that he had allegedly committed against defendant. Included with the letters were photographs depicting defendant's injuries and damage to property allegedly caused by defendant's violent conduct.
One of the persons to whom the letters were sent was a friend of plaintiff. At trial, the friend testified that he knew plaintiff for more than twenty years through their common interest in martial arts, but his acquaintance with defendant was only as plaintiff's wife. He had not seen defendant since early 2007. When he and his wife received the package she mailed, they were shocked and upset because it was "an attempt at character assassination and to change our relationship" with plaintiff. The friend testified that he found defendant's accusations hard to believe, but receipt of the mailing had "strained" his relationship with plaintiff "a bit."
The other two recipients did not testify. Plaintiff testified that one of them was another friend of his for more than thirty years through his martial arts activities, and the third was his sister-in-law, whom defendant had not seen since 2003. Plaintiff testified that he was "upset, physically, mentally disturbed . . . very annoyed, extremely agitated, and alarmed" when he learned about the mailings. He admitted he was not afraid that defendant would do any physical harm to him, since he was a blue belt, sixth degree, in karate. He testified that:
My biggest concern and anxiety and fear that this was - she's threatening me with these packages through third parties, it was obviously intended to me to cause me harm and annoyance and to agitate me, to strike out at me after the divorce was finalized.
I was concerned that every potential employer that I was going to deal with, newspapers, she was going to be sending these, what are equivalent of poison pen packages, out to them also.
As an additional basis for his concerns, plaintiff testified that defendant had called him after entry of her October 2007 final restraining order, and she had repeatedly come unannounced to the martial arts facility he attended. He feared that she was purposely trying to cause him to violate the ...