Friday, September 18, 2015

NJ Divorce Question: My partner/spouse filed for a restraining order based on "harassment". What should I do?

A civil complaint and restraining order application is sometimes inappropriately used by litigants to gain leverage in a domestic case.  Such applications typically allege some species of "harassment".

New Jersey's harassment law is set forth at N.J.S.A. 2C:33-4A person commits the crime of harassment if, with purpose to harass another, he (a) makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm; (b) subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or (c) engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person. N.J.S.A. 2C:33-4.

In the case of Peranio v. Peranio, 280 N.J. Super. 47 (App. Div. 1995) (“Peranio”), the defendant-husband stated to his wife "I'll bury you."  This statement was found by the trial court to constitute harassment and domestic violence.  The Appellate Division reversed, finding that the husband did not commit harassment or domestic violence under those facts.

The Peranio court held that “domestic violence” is a term of art defining a “pattern of abusive and controlling behavior,” which the husband had not exhibited.  Furthermore, while Peranio’s comments were “alarming” he did not have any intent to harass his wife.

The Peranio court emphasized that judicial intervention by way of a finding of domestic violence or harassment, must be premised upon regular and serious abuse between spouses, and a pattern of abuse and controlling behavior, which was simply not present in the Peranios’ case.  Moreover, the Peranio court further emphasized that that there was no history of any prior domestic violence between the couple.

The Peranio court found no basis to enter a final restraining order on the grounds of harassment or domestic violence, and noted that such a finding would diminish the suffering of true victims of domestic violence, and, moreover, abuse the legislative vehicle developed to protect those true victims.  Intense bickering that amounts to mere domestic contempt, it found, does not constitute harassment, and it is not domestic violence. See also D.C. v. T.H., 269 N.J. Super. 458 (App. Div. 1994) (defendant’s threats to “kick [his wife's] ass” if wife’s boyfriend physically disciplined child again did not establish that the defendant was engaged in a course or alarming conduct, or that his behavior was intended to alarm or seriously annoy his wife); State v. L.C., 283 N.J. Super. 441 (App. Div. 1995) (defendant’s acts of blocking his wife in her garage for five minutes, making obscene remarks of an ethnic and sexual nature about wife's new boyfriend, and kicking over garbage can not intended to "alarm" plaintiff—rather, both parties just mutually annoyed each other).

Check the facts of your case.  The allegations against you may not be sufficient to support a domestic violence or harassment finding.  You may ask that the case be dismissed as a matter of law if there are no allegations of (1) a pattern of abusive and controlling behavior, (2) a history of domestic violence, or (3) any evidence of an intent to harm.  While judges rarely grant such summary applications, it will at least frame the issues very well for the hearing.

Remember, there are rules of evidence and procedure that apply to all judicial proceedings. You should have a working knowledge of these rules before you appear in court.