No Doubt She Stalked Him – So, Why No Restraining Order?

Posted May 29th, 2019 by .

Categories: Domestic Violence, Family Law.

To the husband, it seemed more than evident. The court agreed that his wife was guilty of stalking him as a predicate act of domestic violence. However, the judge found it unnecessary to convert a temporary restraining order to a final one. You might be interested in both the history of this case and how the court decided it.  restraining order

The Appellate Division listened to the argument in the matter of K.M. v. M.D. on January 29, 2019. Ultimately the unpublished decision came out on May 23, 2019, with the parties’ names kept anonymous with the use of initials.

The preface to the case references a court rule stating that this legal opinion does not “constitute precedent.” It is also not binding to anyone other than the individuals involved in the case.

Notably, K.M. represented himself during the appellate proceedings, while an attorney argued the case for M.D. The history of the matter does not indicate if both parties retained legal counsel at the trial court level.

From all appearances, K.M. and M.D. were involved in an ugly divorce at the time the domestic violence issues arose. Although K.M. filed for divorce in 2013, the matter remained unresolved in 2017. As far as further history, the couple married ten years prior and had one daughter together.

K.M.’s request for a restraining order cited a number of issues. He was particularly upset that M.D. installed a GPS tracking device on his vehicle, which he claimed enabled her to stalk him. Remarkably, NJSA 2C:25-19 lists nineteen acts that the law considers domestic violence. Stalking is number 14 on the list.

Need for Restraining Order Refuted

According to the chronology provided by the court, K.M. first discovered the tracking device on his vehicle in May 2017. For whatever reason, he waited until a month later to seek a temporary restraining order (TRO). A family court judge issued the TRO based on the stalking allegations related to the GPS tracker.

Meanwhile, K.M. cited other problems with M.D. that he felt warranted a final restraining order (FRO). He said M.D. came to his home uninvited and took his daughter away during his scheduled visitation. Allegedly, M.D. also called him names, degraded him, and threatened him with jail. K.M. complained that his estranged wife further threatened to keep their daughter away from him.

As far as prior acts of domestic violence, K.M. informed the court of an incident wherein he claimed M.D. assaulted him by slamming a truck door on his foot. He reiterated other times where his estranged wife degraded and insulted him.

Estranged Wife Stalked Him

The family court judge listened to the testimony of both parties in the matter. M.D. admitted that she placed the tracking device on K.M.’s vehicle. In fact, it was undisputed that she did so in January 2016.

M.D. explained her logic in tracking her estranged husband. It wasn’t her intention to stalk him. Moreover, she expressed concern about her daughter’s welfare when she was with her father. She claimed there were several times that K.M. was drinking and driving with their daughter in the car.

Wondering how K.M. found out about the tracking device? Apparently, M.D. spilled the beans herself. She called and questioned the plaintiff about the places he visited. At one point, his older daughter became alarmed and asked if someone was following him.

Upon consideration, the trial court remarked on the acrimony between the parties. When it came to their testimony, the judge found that “the only credible things here is that there was a device on the vehicle and that she put it on the vehicle.”

Ultimately, the judge concluded that K.M. established that M.D. stalked him. This constituted a predicate act of domestic violence. So, why didn’t the judge issue the final restraining order?

Why the Court Didn’t Execute the Restraining Order

Proving a predicate act of domestic violence represents only one element necessary to obtain a final restraining order. According to the seminal case of Silver v. Silver, the plaintiff must show evidence of something else.

In that matter, the Appellate Division emphasized that a finding of a predicate act of domestic violence does not automatically warrant a final restraining order. Rather, there must be proof of immediate danger to person or property. And, that the FRO proves necessary to prevent further abuse.

When the judge considered the restraining order requested by K.M., he concluded that M.D. stalked him. That said, “he did not “find by any other evidence and testimony, credible testimony, that a restraining order [was] necessary to protect the victim from immediate danger or [to] prevent further abuse….”

On appeal, the Appellate Division noted another consideration in granting restraining orders. Judges also evaluate cases based on the previous history of domestic violence. The court seeks to determine if the “domestic violence is ordinarily more than an isolated aberrant act.”

After reviewing the facts of the case, the Appellate Division affirmed the decision made by the lower court. The family court judge properly denied the request for a restraining order.

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Whether you are a victim or a defendant in a domestic violence case, you need legal advice. With over three decades of experience, the Law Offices of Anthony Carbone can help you. Give us a call to schedule a complimentary appointment to discuss your situation.

 

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