Hi, Jenny:
I am just catching up on this listserve and saw this. My brain is popping because I have an appeal this might apply to. Last year I appealed an FRO (issued Feb. 2015) and received a remand (March, 2016) because the trial judge didn't apply a Silver analysis. In September, 2015, client was found in contempt for violating the FRO (arguably wrongly, but that is not part of the appeal). In May, 2016, the remand hearing occurred (handled by original trial attorney, not me) and the trial judge issued an amended FRO in July finding (inappropriately, I think) that there was a need for an FRO (no physical violence, no menacing conduct or volatility, no previous history of dv prior to the first FRO) and specifically cited the later FRO violation. My initial reaction was to dismiss this as a sort of ex post facto conduct (as opposed to law) which would be a due process violation. Then I saw this post and read Judge Jones' decision. Judge Jones' case applies the amendment to the violation of a TRO and the entire decision occurs in the same case and he notes in his analysis that a TRO violation could be relevant in assessing the need for an FRO under Silver. However, he does note that the amendment makes no distinction between a TRO violation and an FRO violation. So now I am wondering if my client's subsequent FRO violation actually could be used against him to relate back to the need to issue the FRO in the first place. Judge Jones didn't employ this reasoning; he just used the violation as partial support for his finding. I'm wondering if I have to address this at all in the appeal. Respondent has always been pro se and I am assuming she will continue to be so in this appeal so I am wondering if the appellate court would independently look at the amendment if I don't address it. I think this actually would be an ex post facto law as applied to this case.
Any thoughts?
Thanks,
Clara
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Clara S. Licata, Esq.
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Original Message:
Sent: 09-12-2016 10:55
From: Jenny Berse
Subject: DS v. BC - Violation of TRO
Another very useful case from Judge Jones (see attached):
"In 2015, the New Jersey Legislature formally amended the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35, to include a defendant's knowing violation of the no-contact provisions of a restraining order as an independent act of domestic violence. N.J.S.A 2C:25-19(a)(17). To date, there have been no reported opinions addressing the meaning, interpretation, and potential application of this new provision in the context of a plaintiff's application for a final restraining order.
For the reasons set forth in this opinion, the court holds the following:
1) A knowing violation of a temporary restraining order meets the first prong of a two-pronged test under Silver v. Silver, 387 N.J. Super 112 (App. Div. 2006) for entry of a final restraining order. In considering whether to enter a final restraining order, a trial court must also consider the second prong of the Silver test, i.e., that a final restraining order is necessary to protect the plaintiff under the factual circumstances of the case. The second prong is a requisite step in the Silver analysis, irrespective of whether the predicate act is a violation of a temporary restraining order under N.J.S.A. 2C:25-19(a)(17), or any other act of alleged domestic violence as defined under N.J.S.A. 2C:25-19(a).
2) Two or more separate acts, even if each independently insufficient to meet the two-prong Silver test for entry of a restraining order, may in the aggregate satisfy Silver and constitute a sufficient basis for entry of a restraining order.
3) The right of a plaintiff to seek a final restraining order, based upon a defendant's knowing violation of a temporary restraining order, exists independently of whether defendant’s violation is, or can be, the subject of separate contempt proceedings in an action for violating a restraining order under the court's “FO” docket, pursuant to N.J.S.A. 2C:25-30 and 2C:29-9.
4) The August 17, 2015 amendments to the Domestic Violence Act apply equally to knowing violations of all restraining orders issued under the statute, whether final (FRO) or temporary (TRO) in nature."
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Jenny Berse Esq.
Cranford NJ
(855) 326-5291
[email protected]
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