R.J.S. v. R.W.M.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5247-09T2

R.J.S.,

Plaintiff-Respondent,

v.

R.W.M.,

Defendant-Appellant.

________________________________

March 21, 2012

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.

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.