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S.K v. J.H

June 6, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-264-12.




Argued April 17, 2012

Before Judges Fisher, Nugent and Carchman.*fn1

The opinion of the court was delivered by FISHER, P.J.A.D.

In this appeal, defendant argues the evidence did not support the trial judge's finding that when defendant atrociously assaulted plaintiff, while both were on a trip to

Israel with dozens of others, the parties were in a "dating relationship" within the meaning of the Prevention of Domestic Violence Act (the Act), N.J.S.A. 2C:25-17 to -35. Although plaintiff's unrebutted testimony -- that, one evening, she and defendant sat together, danced together, and were together for a few hours at the bar -- may have been sufficient to support a finding that the parties were on a "date," there was no evidence of anything more than this single date and, thus, no evidence of the "dating relationship" required by the Act. We, therefore, reverse.

To obtain a final restraining order pursuant to the Act, a plaintiff must prove, by a preponderance of the evidence that: he or she is a "victim of domestic violence," N.J.S.A. 2C:25- 19(d); the defendant committed a predicate act, N.J.S.A. 2C:25- 19(a); and a restraining order "is necessary . . . to protect the victim from an immediate danger or to prevent further abuse," Silver v. Silver, 387 N.J. Super. 112, 127 (App. Div. 2006) (citing N.J.S.A. 2C:25-29(b)).

Here, only plaintiff testified at trial. Defendant did not attend the hearing and appeared only through counsel. The parties stipulated to the records relating to defendant's criminal prosecution in Israel. Plaintiff's unrebutted testimony and the stipulated documents demonstrated that plaintiff was on a trip to Israel with approximately forty others, including defendant. The parties had not met before the trip began. On May 31, 2010, a few days after arriving in Israel, plaintiff, defendant and others attended a group function. Later that night, or in the early morning hours of June 1, 2010, plaintiff, a female friend of plaintiff's, and defendant walked to plaintiff's room. The Jerusalem District Court's decision, which the parties stipulated into evidence, contains a finding that defendant then attempted to kiss [plaintiff] and she pushed him back and immediately entered her room. When she went out again, in order to walk to her friend's room and ask her to wake her up in the morning, she was noticed by [d]efendant, who ran towards her, jumped on her, for no reason, and began attacking her harshly, even after she had become unconscious. The [d]efendant did not stop until a resident of the place pulled him away from her and removed him from the place. As a result of the assault, [plaintiff] incurred severe bruises, broken orbit, fractures in jaw, tooth, cuts that required stitching and injury to the left lung.

Pursuant to a plea agreement, defendant admitted this conduct and was sentenced to an eight-and-one-half-month jail term, which was ordered to be served through community service with credit for defendant's incarceration for ten weeks following his arrest. Defendant was also ordered to pay plaintiff $57,000 in restitution.

These undisputed facts amply demonstrated the occurrence of a predicate act of such severity and viciousness that the need for a restraining order, as we said in Silver, supra, 387 N.J. Super. at 127, was "perfunctory and self-evident." The only matter in dispute was whether plaintiff could be said to be a "victim of domestic violence" as defined by N.J.S.A. 2C:25- 19(d).

Not every person injured by another is entitled to the Act's protections. The term "victim of domestic violence" was originally limited to persons eighteen years of age or older, or emancipated minors, who were "subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member," as well as "a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant." Ibid. Plaintiff fits none of these descriptions.

The term "victim of domestic violence," however, was amended in 1994, see L. 1994, c. 93, ยง 1, to include "any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship." Ibid. Plaintiff asserted that her relationship to defendant ...

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