A.M.C. v. P.B.

148 A.3d 754, 447 N.J. Super. 402, 2016 N.J. Super. LEXIS 137
New Jersey Superior Court Appellate Division·Decided October 21, 2016·Published·Cited by 73 cases

Opinion

The opinion of the court was delivered by

FUENTES, P.J.A.D.

In this appeal, we are asked to determine whether the trial court erred when it denied plaintiff a final restraining order (FRO), pursuant to the Prevention of Domestic Violence Act (PDVA), N.J.S.A. 2C:25-17 to -35, even though it found that her husband, a police officer, physically assaulted her on two separate occasions over a three-week period. Applying the two-prong analysis we articulated in Silver v. Silver, 387 N.J.Super. 112, 125-27, 903 A.2d 446 (2006), the trial judge found an FRO was not necessary to protect plaintiff from future acts or threats of violence because plaintiff “failed to establish even a mere likelihood that the parties would continue to interact in the future” or that defendant posed a threat to her.

We reverse. The trial court misapplied the two-prong standard we articulated in Silver when it failed to adequately consider: (1) the inherently violent nature of the predicate acts defendant committed against plaintiff over a three-week period; (2) the fact defendant physically assaulted plaintiff to prevent her from leaving the marital residence and seeking refuge in a women’s shelter; and (3) the parties’ history of domestic violence, which included both violent behavior and threats of further violence. Under these circumstances, the need to issue an FRO to protect plaintiff from further abuse by defendant is “self-evident.” Silver, supra, 387 N.J.Super. at 127, 903 A.2d 446.

The record also shows defendant, a City of Newark Police Officer, was not served with plaintiffs complaint or with the temporary restraining order (TRO) issued by the Middlesex County Family Part, as required by N.J.S.A. 20:25-28(1). Further, “the clerk of the court or other person designated by the court” failed [406] to notify the Chief of Police of the Newark Police Department, members of the State Police, or “any other appropriate law enforcement agency” that a TRO had been issued against defendant, as required under N.J.S.A. 2C:25-28(n). These failures also violated the procedures for service of process approved by the Supreme Court in the most recent edition of the New Jersey Domestic Violence Procedures Manual.

We hold the trial court had an obligation to determine what caused these violations of law and Supreme Court policy. The failure to carry out these procedural requirements compromises the safety of domestic violence victims and undermines defendants’ constitutionally guaranteed right to due process of law. We further hold that the trial court erred as a matter of public policy when it considered the Judiciary’s failure to carry out these legal responsibilities as a factor in favor of denying plaintiffs application for an FRO.

I

A

On June 9, 2015, plaintiff A.M.C. fled her marital residence in Newark and took refuge in a women’s shelter located in Middlesex County. Aided by the shelter staff and represented by Central Jersey Legal Services, plaintiff filed a complaint that same day in the Family Part, Middlesex County,2 alleging that her husband P.B., a police officer in the Newark Police Department, committed acts of domestic violence3 against her in the form of terroristic threats, N.J.S.A. 2C:12-3, sexual assault,4 N.J.S.A. 2C:14-2, physical assault, N.J.S.A. 2C:12-1, and harassment, N.J.S.A. 2C:33-4.

[407] The Family Part considered plaintiffs ex parte application, as authorized by N.J.S.A. 2C:25-28(i) and Rule 5:7A(a), and granted plaintiff a TRO which, inter alia, prohibited defendant from contacting plaintiff in any way, enjoined defendant from possessing any firearms, and directed any law enforcement officer having jurisdiction “to search for and to seize any issued permit to carry a firearm.” As required by N.J.S.A. 2C:25-28(Z), the form order directed all law enforcement, including by implication the Newark Police Department,5 to serve defendant with copies of the complaint and TRO. The court directed the parties to appear at 8:30 a.m., on June 18, 2015, for an evidentiary hearing to determine whether an FRO against defendant was warranted.

Both parties appeared at the FRO hearing on the date and time indicated in the TRO and both were represented by counsel. At the hearing, defendant testified he was not served with copies of the complaint or the TRO.

DEFENSE COUNSEL: How did you find out about it?
DEFENDANT: I got a call from a male voice from a 732 phone number saying that I had a TRO against me.
[[Image here]]
DEFENSE COUNSEL: And did he send it to you? Did he call you? Did ... you get a copy of that?
DEFENDANT: No.
DEFENSE COUNSEL: What did you do after you heard this?
DEFENDANT: I called my brother and asked him, you know, what should I do. And he ... referred me to ... you. To a lawyer’s office.
DEFENSE COUNSEL: And ... did you come to my office?
DEFENDANT: Yes.
DEFENSE COUNSEL: And, if you know, how did we find out about this TRO?
[[Image here]]
[408] DEFENDANT: Oh, I guess you called ... the New Brunswick Courts and they faxed you over a copy[.] I believe that’s [how] it went.
DEFENSE COUNSEL: And that’s [how] you learned about this TRO against you?
DEFENDANT: I saw the hard copy, yes.
DEFENSE COUNSEL: And what day did you learn about the TRO against you?
DEFENDANT: This was the ... 15th was the phone call. I actually saw it in your offiee[.] [I]t was Wednesday, the 16th, maybe. I don’t know. I’m not sure of the date.6

The parties married in October 2014. They do not have any children. Plaintiff testified she “permanently” left her marital residence on June 9, 2015, because of defendant’s physically abusive behavior. She testified that, as she was leaving, defendant told her “he would make [her] life hell” and stated that he “can harm [her] whenever he wants.” Defendant then grabbed and squeezed plaintiffs arm with such force that he left visible bruises. Plaintiff testified defendant grabbed her arm for “[a]bout five minutes.” She further testified that while squeezing her arm, defendant stated “he can hurt [her] whenever he feels like it.”

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A.M.C. v. P.B., 148 A.3d 754, 447 N.J. Super. 402, 2016 N.J. Super. LEXIS 137 (N.J. Ct. App. 2016).

148 A.3d 754 (A.M.C. v. P.B.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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