By Strich Law Firm, Oct 18 2016 03:31PM
27 years after a failed engagement, the woman Plaintiff in this case is seeking a Final Restraining Order under the Protection Against Domestic Violence Act. After many years of no contact, the Defendant contacted the Plaintiff online and continued communications via text messaging. Plaintiff asserted that she told the Defendant to stop contacting her and to go back to his wife. However, she was unable to produce supporting text messages. The court read selected “insulting” text messages that were on record, none of which were disputed by Defendant. The Defendant referred to the Plaintiff as “pig,” “liar,” and other more derogatory insults such as the “b” word and “c” word. Additionally, the Plaintiff testified that she was confronted by the Defendant and his new wife at a private club function, where she was allegedly lunged at and threatened to be assaulted. With respect to Domestic Violence, the Plaintiff also asserted she was approached while seated on a bench in the hallway on the second day of trial by the Defendant, and was grabbed on the arm over the course of conversation.
At the request of Plaintiff, one of her former boyfriends intervened on her behalf and sent a text to Defendant to cease contacting her. The two former boyfriends exchanged text messages.
Defendant denied all allegations of Domestic Violence, and asserted that the parties maintained cordial text communications for months without the Plaintiff ever telling him to stop texting her. The Defendant admitted that he sent nasty text messages using “foul language,” but maintained he was provoked by threats by the Plaintiff’s former boyfriend.
While the court found the purpose of harassment to be legitimate, because the trial court failed to properly apply both prongs to the test established in Silver v. Silver, the court’s finding that the need for the Final Restraining Order was unsupported by any explicit findings regarding a history of domestic violence. Due to the sole basis of the Final Restraining Order being verbal harassment in the form of name calling, absent any credible physical threats of violence against the Plaintiff or her Property, a remand for a re-hearing on the issue was deemed most appropriate.
See L.I. v. C.M. III, App. Div. 4/5/16.
Comment: The key is meeting the two prongs of Silver v Silver: 1) A Final Restraining Order (“FRO) is necessary to protect the victim from “immediate danger or to prevent further abuse;” 2) That the communication and/or behavior was of a harassing nature. Here, the Appellate Court felt that he first prong was not met; while the language was harassing, there was no showing of immediate danger or to prevent further abuse. The Court did not address Defendant’s assertion that his communication with Plaintiff had stopped. Question: Did the communication only stop after being served with the TRO? This matter was sent back to the trial court to determine whether Plaintiff met the prong of needing protection.
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