On March 24, 2014, the New Jersey Appellate Division published the case N.B. v. S.K. This case addressed the proper application of certain legal and procedural rules to a domestic violence case under the New Jersey Prevention of Domestic Violence Act. Specifically, the issue arose whether the trial court judge erred by refusing the Plaintiff to testify to the existence of prior “civil restraints.”
The Court held that such testimony should have been allowed, not because it could show re ipsa proof of a current act of domestic violence, but rather to demonstrate the history of the case and how that might affect the subjective Plaintiff with regard to how the Plaintiff/alleged victim might view certain actions by the Defendant. It should be noted that the Court also appears to have found that the trial judge applied the wrong standard for a motion for directed verdict (by not granting all inferences to the Plaintiff) and erred by now allowing the Plaintiff’s attorney to call the Defendant to the witness stand.
The major issue in this case—and indeed the major takeaway therefrom—–is that a Plaintiff does have the right to testify to prior civil restraints (“matrimonial restraining order). Although such testimony cannot be sufficient to prove a case absent one of the enumerated acts of domestic violence (assault, harassment, etc)., it can provide necessary context and the current act should be viewed through the lens of the prior history of the parties. As stated in the decision: “The many decisions of our jurisprudence reveals the importance of the context or setting in which the act or acts of harassment occurred.”
Why the Court Reversed/Remanded the Case
As indicated above, the basic holding of the case is that the trial judge erred in granting “an involuntary dismissal of plaintiff’s 2012 domestic violence action because [he] mistakenly failed to give sufficient consideration to defendant S.K.’s past and present violations the matrimonial restraints.”
As stated by the Court: Plaintiff was entitled to submit evidence of the past violations of the matrimonial restraints, not because the violations of those orders are per se “acts of domestic violence” — they are not — but because those past violations support the claim that defendant engaged in acts of harassment by making communications ‘with purpose to alarm or seriously annoy.’ That evidence explains why the recipient would be alarmed or seriously annoyed by the communications.”
Analysis from one Lawyer’s Point of View
The discussion of possibly entering into “civil restraints” comes up essentially every time I represent a party in a domestic violence hearing. One of the things I tell my Plaintiff clients, is that the civil restraints lack “the teeth” of final restraining order because a violation of civil restraints does not lead to criminal contempt charges. Although at the end of the day either form of protection is essentially just “a piece of paper,” there is a big difference between them. I also tell such clients, that some protection is better than none. A lot of this is extremely case sensitive (particularly with regard to the strength of the case, the history of the parties, the likely future actions of the Defendant) and I try to weigh the pros and cons of the case and ultimately let my client decide how he or she would like to proceed. Another thing I advise my clients, is that if they do choose to pursue civil restraints, they can always go back if there is a future act of domestic violence, and that the entry of civil restraints should be used by the Court in reviewing the parties’ history of domestic violence.
This case is therefore very positive from the point of view of protecting the (already somewhat limited sanctity) of civil restraints. If these items could not be brought to the Court’s attention at a future final restraining order (“fro”) hearing, then their utility would be greatly diminished.
The case is also positive, from a practitioners point of view (and I believe also from a client’s point of view) in demonstrating the importance of following the rules of court and the rules of evidence even in a domestic violence trial—which is often a much more relaxed atmosphere with regard to discovery, etc. These are important matters to both parties.
It was interesting to me that the Court chose to publish this opinion. At first glance, many of the concepts are well-established. This reminder of the utility of civil restraints at a future final restraining order history, however, is a welcomed one and useful to practitioners in the field of family law and their clients.
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