SUPERIOR COURT OF NEW JERSEY
APPELLATE
DIVISION
R.J.S.,
v.
R.W.M.,
________________________________
|
Submitted March 12, 2012 - Decided
Before Judges Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Ocean County, Docket No. FV-15-2215-10.
Patrice R. Hayslett, attorney for appellant.
Respondent has not filed a brief.
PER CURIAM
In
this unopposed appeal, defendant R.W.M. contests the Family Part's entry of a
final restraining order ("FRO") against her in favor of plaintiff
R.J.S. under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17
to -35 ("the Act"). The
FRO was issued after a trial on May 17, 2010, at which both parties were
self-represented. Two days after
issuing the FRO, the trial court denied defendant's motion to stay the
restraints, and this appeal followed.
The
record reflects that the complaint arose out of an altercation between the
parties on May 6, 2010, in the parking lot of their high school. At the time, plaintiff was seventeen-
years-old and defendant was eighteen-years-old, and they both were enrolled in
the twelfth grade at that high school.
As indicated by the limited testimony on the subject at trial, the
parties had dated one another for approximately six months. They broke up on May 2, 2010, four days
before the incident in the parking lot.
The parties had never lived together and had no children.
According
to plaintiff's allegations, which the trial judge accepted as credible, defendant,
accompanied by a female friend, assaulted him in the parking lot on the
afternoon of May 6. Plaintiff
testified that defendant parked her vehicle next to him. She walked over to him and an argument
quickly erupted. Defendant began
striking plaintiff in the face and neck.
Plaintiff grabbed defendant by the arms and attempted to restrain
her. Defendant's friend then got
out of defendant's vehicle and placed plaintiff in a headlock. While the friend held plaintiff,
defendant continued to punch him.
She also bit him on the back.
A teacher then interceded and stopped the fight. Police were called to the scene and
defendant was placed under arrest.
Thereafter, the high school apparently issued a "safety plan"
relating to the parties.[1]
Plaintiff
obtained a temporary restraining order six days later, based on a concern that
defendant would provoke another confrontation with him. At the ensuing FRO trial, he recounted
the attack in the parking lot. He
also contended that defendant had made several posts on Facebook directed
against him. Defendant likewise
testified, and gave her own account of the parking lot incident.
Following the
testimony, the Family Part judge concluded that defendant had engaged in the
predicate act of assault, and that restraints were warranted to protect
plaintiff from further intrusions upon his peace and privacy. Immediately after the FRO trial,
defendant appeared in the municipal court and pled guilty to simple assault
arising out of the same conduct.
On appeal,
defendant makes two arguments.
First, she contends that the record lacks proof of a sufficient
"dating relationship" to confer jurisdiction under the Act. Second, she maintains that the Family
Part erred in concluding that final restraints were necessary for the
protection of plaintiff, who had been a member of the high school wrestling
team.
With respect to
the jurisdictional issue, the Act defines a "[v]ictim of domestic
violence," who is eligible to seek restraints, as follows:
[A]ny person who is 18 years of age or
older or who is an emancipated minor and who has been subjected to domestic
violence by a spouse, former spouse, or any other person who is a present or
former household member.
"Victim of domestic violence" also includes any person,
regardless of age, who has been subjected to domestic violence by a person with
whom the victim has a child in common, or with whom the victim anticipates
having a child in common, if one of the parties is pregnant. "Victim of domestic violence"
also includes any person who has been subjected to domestic violence by a
person with whom the victim has had a dating relationship.
[N.J.S.A. 2C:25-19(d).]
The Act does not precisely define
the term "dating relationship."
However, the concept has been developed in case law.
In Andrews v.
Rutherford, 363 N.J. Super. 252, 260 (Ch. Div. 2003), the court
identified six factors that may bear on whether the parties have a qualifying
"dating relationship":
1. Was
there a minimal social interpersonal bonding of the parties over and above a
mere casual fraternization?
2. How
long did the alleged dating activities continue prior to the acts of domestic
violence alleged?
3. What
were the nature and frequency of the parties' interactions?
4. What
were the parties' ongoing expectations with respect to the relationship, either
individually or jointly?
5. Did
the parties demonstrate an affirmation of their relationship before others by
statement or conduct?
6. Are
there any other reasons unique to the case that support or detract from a
finding that a "dating relationship" exists?
Andrews cautioned that
although "none of these factors may be individually dispositive on the
issue, one or more of the factors may be more or less relevant in any given
case depending on the evidence presented." Ibid. These
factors should be liberally construed.
Ibid.
In
Andrews, the parties were only involved with each other for
approximately five months. Id.
at 261. The plaintiff alleged the
parties were involved in a very intimate relationship. Id. at 260. Conversely, the defendant alleged it
was a very casual relationship, especially because the defendant had a
boyfriend, who was not the plaintiff, during their relationship. Id. at 261-62. The court found that the parties only
held themselves out to be a couple in front of the plaintiff's family. Id. at 265. Nevertheless, the court found the
parties to be in a dating relationship within the meaning of the Act. Ibid. In reaching that conclusion, the court in Andrews
stated,
As exhibited above[,] the parties had
a social interpersonal bonding between them that went far beyond mere
fraternization. This bonding was
forged over a several month period involving the typical conduct of young
people who are exploring the limits of each other's feelings for one another. While it is clear that the relationship
had not reached the level of a lifetime commitment, it need not have to for the
purpose of establishing the minimum conduct to establish a dating relationship
required by the Prevention of Domestic Violence Act.
[Ibid.]
In
J.S. v. J.F., 410 N.J. Super. 611, 614 (App. Div. 2009), we
considered the factors outlined in Andrews, and noted that other factors
also may be relevant to the determination of a "dating relationship"
under the Act. We added that the "facts
should be liberally construed in favor of finding a dating relationship"
in accordance with the intent and policy underlying the Act. Ibid. As we noted, "although Andrews suggests some
useful factors, courts should vigilantly guard against a slavish adherence to
any formula that does not consider the parties' own understanding of their
relationship as colored by socio-economic and generational influences." Id. at 616. In particular, we expressed concern
that "a rigid application of the factors set forth in Andrews might
exclude many teenage dating relationships from the Act's
coverage." Id. at 616
n.4 (emphasis added). We upheld
the trial court's determination in J.S. that a dating relationship
existed where the plaintiff was initially a paid escort, but testified that the
parties had gone out several times and "spent weekends
together." Id. at 617.
In
Tribuzio v. Roder, 356 N.J. Super. 590, 597 (App. Div. 2003), a
case involving a one-year former dating relationship, we noted that, in
assessing whether the jurisdiction of the Act has been properly invoked, a
court should also consider "[t]he extent and nature of any intervening
contacts as well as the nature of the precipitating incident[.]" The dating relationship in Tribuzio
had ended approximately three years before plaintiff sought restraints. Ibid. However, because defendant had initiated unwanted contacts
with defendant on multiple occasions after the parties' break-up, we upheld the
restraints by the trial court, given the defendant's persisting abusive and
controlling behavior following their one-year dating relationship. Ibid.; see also Sperling
v. Teplitsky, 294 N.J. Super. 312, 320-21 (Ch. Div. 1996) (declining
to issue restraints under the Act in a case arising out of a dating relationship
that had ended four to five years earlier, noting the absence of a pattern of
controlling behavior before or after the parties' break-up, and further noting
that the Act's jurisdiction does not extend to all former dating
relationships).
The
present record in this case does not develop the facts sufficiently for us to
evaluate defendant's argument that the parties' "dating relationship"
did not place them within the Act's jurisdiction. Defendant does not dispute that they had been dating in high
school for about six months, and that the dating relationship had ended about
four days before the parking lot incident. The limited testimony in the FRO transcript does not provide
more useful detail than that, perhaps owing to the fact that both parties were
self-represented at the hearing.
Given
the sparse quality of the record on this issue, we remand this matter to the
Family Part to reopen the record so that additional proofs may be adduced
concerning the parties' former dating relationship, in light of the factors
identified in Andrews and other applicable case law. We suspect that defendant will have
difficulty in establishing that the dating relationship was inconsequential for
purposes of the Act, given the short interval of only four days between the
parties' break-up and the assault in the parking lot. That said, we are also mindful of the serious collateral
consequences that flow from the entry of final restraints against a defendant. We therefore refer the jurisdictional
issue back to the trial court for additional proofs and findings. The remand proceedings shall be
completed within sixty days. In
the meantime, the terms of the FRO shall remain in place.
Given
the open jurisdictional issue, we do not pass at this time on defendant's
second argument that the record lacks sufficient proof of the necessity for
restraints, as required under Silver v. Silver, 387 N.J. Super.
112, 127 (App. Div. 2006). See
also J.D. v. M.D.F., 207 N.J. 458, 475-76, 488 (2011)
(endorsing the need for such proof of necessity, and remanding that case for a
rehearing of the FRO to assess more fully whether the risks of harm are so
great as to warrant final restraints).
We do note that both parties have presumably graduated from high school
by now, and may or may not continue to reside in the same community. We are also cognizant that plaintiff
has elected not to participate in this appeal, which may or may not be
indicative of his present posture concerning the continued need for
restraints. Because the record is
being reopened in any event, the trial court is free in its discretion to
adduce additional proofs as to whether there is an ongoing necessity for
restraints for the protection of plaintiff. See Carfagno v. Carfagno, 288 N.J. Super. 424,
437 (Ch. Div. 1995). If the court
reaffirms the entry of an FRO, defendant may move before this court within
forty-five days to reopen the appeal and amend her notice of appeal to include
the remand order. Alternatively,
if the court vacates the FRO, plaintiff may file his own appeal within
forty-five days if he so chooses.
Remanded
for further proceedings consistent with this opinion. We do not retain jurisdiction.
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[1] According to
the trial court's post-trial order of May 19, 2010 denying a stay of the FRO, a
copy of that safety plan had not been furnished to the trial court as of that
date. The trial court had received
a letter dated May 13, 2010 from the school's attorney representing that such a
plan was being put into effect, with appropriate modifications of the parties'
class schedules. The letter
further requested that the FRO be dissolved so that both parties could complete
their studies and graduate in June 2010.
The record does not enlighten us as to whether, in fact, both parties
graduated in June 2010.
