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D.M v. L.R.


October 4, 2012


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Morris County, Docket No. FV-14-000018-12.

Per curiam.



Submitted May 22, 2012 -

Before Judges Yannotti and Kennedy.

Defendant appeals from a final restraining order entered against her pursuant to the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35. For reasons stated herein, we reverse.

Plaintiff and defendant had a dating relationship that started in 2004. It appears that the relationship was stormy and that the parties broke up and reunited several times over the course of several years, until their final break-up in December 2010.

On May 25, 2011, plaintiff filed a domestic violence civil complaint against defendant in which he alleged that defendant had harassed him and his new girlfriend. Rather than proceed to trial, however, the parties signed a "consent agreement" on June 10, 2011, whereby defendant agreed to "have no direct or indirect interaction" with plaintiff, his family or his customers. Further, if the parties had "any outstanding issues with each other," they agreed to handle those issues through the "court system." Plaintiff's domestic violence complaint was "withdrawn and dismissed."

Thereafter, defendant filed a domestic violence complaint against plaintiff alleging that on July 2, 2011, she found a letter under her garage door stating "You cannot win so stop or else." She asserted that plaintiff "may have" been responsible for the letter and that it constituted harassment.

Plaintiff also filed a domestic violence complaint against defendant alleging that on June 30, 2011, while in court to address a civil lawsuit that defendant had filed against him, he was "almost knocked . . . over" when defendant "ran into" him outside the courtroom.

The actions were tried before the Family Part on August 8, 2011, and each party testified. Defendant testified she had no arguments with anyone else and therefore simply "believe[d]" the typed note had been left by plaintiff. Plaintiff denied having written or placed the note by defendant's garage, and further stated that, while at the courthouse on June 30, 2011, defendant "came down the hallway, and bodily ran into [him], and yelled that [he] was in her way."

The trial judge found that defendant had not established the typed note was authored by plaintiff, and that the existence of the note would not constitute an act of domestic violence, in any event. With respect to plaintiff's complaint, the judge explained that defendant "has had a hard time letting go" and her lawsuits were "off the mark in a way that suggests" they were brought simply to "get at" plaintiff. The judge found "harassment . . . based on violation of both the spirit and the letter of the consent agreement[.]" He added that "there has been a course of alarming conduct looking at the entire history" and entered a final restraining order against defendant." This appeal followed.

Defendant raises a host of issues on appeal, but essentially argues that the trial court erred in adjudicating a domestic violence complaint by focusing on the "past history" between the parties and not addressing the actions alleged in the complaint. We agree.

The commission of one of the offenses listed in N.J.S.A. 2C:25-19 is a prerequisite to the entry of a domestic violence order. Franklin v. Sloskey, 385 N.J. Super. 534, 542 (App. Div. 2006). Moreover, "due process requires that [the] defendant receive 'notice defining the issues and an adequate opportunity to prepare and respond.'" J.D. v. M.D.F., 207 N.J. 458, 478 (2011) (quoting H.E.S. v. J.C.S., 175 N.J. 309, 321 (2003)). A court may consider allegations of domestic violence not included in a complaint to determine whether there has been a history of domestic violence. See J.D., supra, 207 N.J. at 479. However, "due process forbids the trial court to convert a hearing on a complaint alleging one act of domestic violence into a hearing on other acts of domestic violence which are not even alleged in the complaint." Id. at 478 (internal citations omitted); see also L.D. v. W.D., 327 N.J. Super. 1, 4 (App. Div. 1999); J.F. v. B.K., 308 N.J. Super. 387, 391-92 (App. Div. 1998).

The trial judge did not make any finding that the events in the courthouse on June 30, 2011 actually occurred or that, if they did, whether such acts amounted to harassment requiring the issuance of a final restraining order. When the court found that defendant committed domestic violence based upon a violation of the "consent agreement" between the parties, the court essentially converted the hearing into one on acts of domestic violence not alleged in the complaint, depriving defendant of her right to due process. See J.D., supra, 207 N.J. at 478. Therefore, it was improper to base a finding of domestic violence upon a series of events alleged as "past history" and not alleged in the complaint as a predicate act.

Additionally, the trial judge's conclusory determination that a restraining order was necessary is insufficient. See Silver v. Silver, 387 N.J. Super. 112, 126-28 (App. Div. 2006) (requiring the court, after finding the commission of the predicate act of domestic violence, to make an inquiry whether a restraining order is necessary to protect the victim from immediate danger or to prevent further abuse based upon the evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to (6)). The judge's determination here was conclusory and not anchored in specific findings of fact which would have supported the finding that a final restraining order was necessary. See Silver, supra, at 126-27 ("[T]he Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence restraining order").



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