New Jersey Appellate Division Issues Decision Clarifying Second Prong of Silver Test

The standard for entry of a Final Restraining Order (FRO) under the NJ Prevention of Domestic Violence has been long established by the Courts (and discussed many times on this blog); under the seminal case Silver v. Silver, in order to obtain an FRO, the plaintiff must have a qualifying relationship with the defendant, and also has the burden to establish that:

1. The defendant committed one or more of the predicate acts of domestic violence identified in the Prevention of Domestic Violence Act; and
2. There is a need for the protection of an FRO going forward.

In a recent published (precedential) decision, A.M.C. v. P.B., the Appellate Division addressed the second prong of that test and the misapplication of the facts to the law that led to the trial court denying the plaintiff’s request for a Final Restraining Order.  In this case, the plaintiff filed a temporary restraining order alleging that the defendant had committed the predicate acts of harassment, assault, and terroristic threats.  At trial, the Court made a factual finding that the predicate act of assault had occurred.  More specifically, the Court found that the act of assault that formed the predicate act of violence for the complaint had occurred and that the defendant had assaulted the plaintiff in an attempt to prevent her from fleeing the marital home.  Further, the trial Court found that a prior act of assault had occurred three weeks earlier.

Despite making those factual findings, the trial court denied the Final Restraining Order because it found that – in spite of two acts of assault that had occurred within a three week period – the plaintiff did not need the protection of an FRO to prevent the defendant from committing further acts of domestic violence against her.  The trial court made this finding based chiefly on 1) the fact that the defendant had not contacted the plaintiff in the 10 days between her having filed the TRO and the Final Restraining Order hearing; 2) the parties’ marriage and, indeed, relationship, was short-term; and 3) the parties did not have children together, which was seen by the court as a mitigating factor because, the judge reasoned, there was less of a likelihood of interaction between the parties since they would not have to go on to co-parent together.

The plaintiff appealed.  On appeal, the Appellate Division squarely addressed the question, “Despite finding that a defendant committed one of the predicate acts listed in N.J.S.A.2C:25-19a, when may a court properly refuse to issue restraints?”  Hearkening back to the seminal Silver case itself, the Appellate Division answered that question by holding that when the predicate acts involves a violent offense – such as assault – and the Court has found that it occurred, then “the decision to issue an FRO ‘is most often perfunctory and self-evident.'” (quoting Silver at p. 127).  The Appellate Division reversed; it found that, in determining that the plaintiff did not need the protection of an FRO going forward, the trial court had “no rational basis” for relying on the length of the marriage, the fact that the parties have no children, and the fact that the defendant had not contacted the plaintiff between when she fled the home and the day of the FRO hearing.  And this makes sense:  if it has been found that a given defendant has a propensity for physical violence against the plaintiff, this should be more persuasive than any of the facts that the trial court relied upon when it made its decision.  Just because a relationship is short-term and there are no children, or the defendant didn’t contact the plaintiff during the ten day period between issuance of a TRO and the FRO hearing, doesn’t lessen the likelihood that the defendant will target the plaintiff with physical violence again.

The takeaway?  The Appellate Division has held that, where the court finds that a predicate act of physical violence (for example, assault or sexual assault) has occurred, the fact that the act was violent in nature should be weighted heavily by the trial judge when assessing whether there is a need for the protection of the FRO going forward, and that an FRO should generally be issued in these instances.

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Jessica C. Diamond is an associate in the firm’s Family Law Practice, resident in the Morristown, NJ, office. You can reach Jessica at (973) 994.7517 or jdiamond@foxrothschild.com.

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Judge Sabatino’s Ruling That Choice of Law Decisions Can be Made Defendant-by-Defendant is Affirmed by the Supreme Court

Ginsberg v. Quest Diagnostics, Inc., ___ N.J. ____ (2016).  Last year, the Appellate Division, speaking through Judge Sabatino, issued a lengthy opinion in this choice of law case.  That decision, reported at 441 N.J. Super. 198 (App. Div. 2015), was summarized here.  The Supreme Court granted review and, in a per curiam decision, affirmed the […]

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Catching Up With Supreme Court Grants of Review

I’ve missed a lot of days in the last several weeks.  The Supreme Court, however, has been active.  The Court announced grants of review in the following cases: In Lee v. Brown, the Court granted leave to appeal.  The question presented there, as phrased by the Supreme Court Clerk’s Office, is “Was a city electrical […]

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Early Settlement Program (ESP) in Divorce Cases

Due to the inordinate time, expense, and lack of judicial resources available for divorce cases, the New Jersey Courts have implemented settlement alternatives to court proceedings.

One of these is the Early Settlement Program (ESP) which helps parties in a divorce reach a settlement in advance of a distant court date.  Represented by attorneys, the parties appear before two Panelists who are experienced matrimonial attorneys.

ESP Process

1. Prior to the ESP date, each party’s attorney will deliver to the panelists his/her client’s written settlement position related to financial issues, along with a Case Information Statement.
2. On the ESP date, the attorneys will meet with the Panelists in a conference room at the Courthouse, argue the positions, and answer any questions from the Panelists.
3. The Panelists will then discuss the case amongst themselves, arrive at a recommendation for settlement, and share that recommendation with the attorneys and the parties.

The panel result is only a recommendation and does not have to be accepted. However, because it is the opinion of two experienced matrimonial attorneys in the applicable judicial precinct, the recommendation should be carefully considered—after many more months and expense the parties could see the same result in court. Even if the parties do not accept the full recommendation of the ESP panel, they should at least view it as the basis for further negotiation on the remaining outstanding issues.

If you are considering an ESP to settle your divorce case prior to trial, you should seek out experienced legal counsel familiar with the process. You have the right to be represented by an attorney in these proceedings and it is in your best interest to do so. The issues being addressed are sensitive and complex, and they require a comprehensive knowledge and understanding of family law in order to achieve a successful outcome.

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The “Single Publication Rule” and the One-Year Statute of Limitations Bar a Defamation Case

Petro-Lubricant Testing Laboratories, Inc. v. Adelman, ___ N.J. Super. ___ (App. Div. 2016).  The “single publication rule” gives a defamation plaintiff “a single cause of action, which arises at the first publication of an alleged libel, regardless of the number of copies of the publication distributed or sold.”  Churchill v. State, 378 N.J. Super. 471 […]

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Online Postings Considered Defamation?

Complaining about an old boss online in an online forum can get you sued. Luckily the Appellate Division agreed with the Judge and dismissed it. Check out this case below.  Just be sure if you put something online, it's factual, otherwise it can get you in hot water.

Court Makes Pivotal Ruling in Defamation Suit Against Boss-Rating Site

The Sixth Anniversary of New Jersey Appellate Law Blog

Yesterday, when I was out of the office, was the sixth anniversary of this New Jersey Appellate Law blog.  I can only offer, yet again, my thanks to those jurists, attorneys, law students, and other interested persons who have subscribed to or otherwise followed this blog, and for their thoughts and comments on it. The […]

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