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Domestic "Contretemps" are not Domestic Violence
Are domestic contretemps a type of domestic violence?
A major issue in many domestic violence cases is whether ordinary family arguing and fighting constitutes harassment under the New Jersey Prevention of Domestic Violence Act. The vast majority of domestic violence cases are based under the charge of simple harassment. As explained in my other articles domestic violence cases are often filed as a sword to kick out a spouse. The vast majority of domestic violence cases are filed on the grounds of repeated name-calling, belligerent telephone calls at work, a one finger salute, etc. Many judges have a very difficult time ruling on domestic violence cases filed on the grounds of harassment. Some judges have a very liberal interpretation of New Jersey's Prevention of Domestic Violence Act and they often enter a final restraining order based on harassment. Alternatively, some judges have a very conservative view on the New Jersey Prevention of Domestic Violence Act, and they consistently rule that there must be clear violence for a final restraining order to be issued.
In my many years of practice, I have repeatedly seen the domestic violence laws abused time and time again. In many cases a victim will agitate the defendant on and encourage an act of domestic violence. The main purpose of many victims is to have the judge order the defendant out of the marital home. This is a controversial statement but it is true in many cases.
A recent case provides more much more protection against marginal domestic violence cases based on harassment. In the case of E.D. v. P.D., A-692-09, the court held that discourteous calls and other aspersions were attributable to "ordinary domestic contretemps." The court held that belligerent telephone calls at work, repeated name-calling and a one finger salute did not amount to the predicate acts of harassment sufficient to warrant a restraining order against an ex-husband under the New Jersey's Prevention of Domestic Violence Act. Thus, the Appellate Division reversed the family court judge. Thereafter, the Appellate Division held in pertinent part:
"Even when viewed expansively, we cannot conclude from the judges findings that defendant engaged in any communications or conduct that rose to the level of what the Legislature intended as domestic violence."
What was the specific fact pattern of the E.D. v. P.D. holding?
The case of E.D. v. P.D., A-692-09 was heard in Somerset County Family Court. Here, Judge Coleman found that the husband P.D. made multiple phone calls to his wife E.D. at work on three consecutive days to inquire whether she had made payments to their children's soccer and cheerleading programs. P.D. allegedly lambasted E.D. during the calls. Moreover, he was hostile and aggressive and refused to correspond with E.D. via e-mail, as she requested.
Weeks later, Judge Coleman also found that P.D. pulled up to E.D. as she stood outside a yoga studio where she attended class and shouted "get your ass home and take care of your kids." P.D. made additional calls criticizing E.D.'s ability to pay bills and ended one such conversation by saying "get it done, bitch." then hanging up, and on anther occasion as the two parties' vehicle passed, P.D. slowed down and presented his middle finger with a "scared look on his face."
Judge Coleman held that these set of facts and actions by P.D. constituted harassment. Thus, the judge entered a final restraining order based on these incidents. The husband then appealed to the Appellate Division. On appeal, the court held this conduct did not amount to the predicate actions necessary to meet the standard for a final restraining order. More specifically the panel held:
"Although there are certain acts of domestic violence that may reveal such a need without a judge's express finding, when the claimed predicate act consists of harassment or other types of non-violence conduct, the judge is required to provide a principled analysis of why a restraining order is necessary to protect the victim from danger of further abused."
Thus, the court held that this type of verbal sparring was not intended to be covered in the state's domestic violence law. See, Corrente v. Corrente, 281 N.J. Super. 243 (App. Div. 1995).
In summary, the case is extremely important. Many divorcing couples get excited and raise their voices when dealing with each other. However, this type of behavior does not constitute domestic violence. The judges in domestic violence cases have a lot of discretion. Thus, the above case may be very important to cite to the court in a marginal domestic violence case.
If the divorce is being filed under one of the seven fault grounds (including extreme cruelty, adultery, abandonment, substance or alcohol addiction, institutionalization, deviant sexual conduct and incarceration), the 18 month separation period, required for a no-fault divorce, is waived. However, each ground for divorce has its own stipulations.
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