The parties appealed from their respective denials of final restraining orders (FROs) against each other. S.M.T. alleged a series of incidents regarding physical abuse, forced sexual acts, and coercive control within the parties' marriage. Although the trial court concluded S.A. committed the predicate act of simple assault and recognized a prior incident of simple assault against S.M.T., it did not make specific findings with respect to the sexual assault allegations or coercive control and ultimately denied S.M.T. an FRO. It reasoned the proven incidents of physical assault amounted to "marital contretemps" for which an FRO was not necessary to protect S.M.T. from future harm because any risk could be handled in the existing family dissolution matter. The court disagreed and concluded S.M.T. proved the need for an FRO because she proved simple assault, sexual assault, coercive control, and established the likelihood of a risk of continued domestic violence. A pending dissolution matter is not the appropriate forum to address future risk of domestic violence, unless the parties have mutually agreed to civil restraints.
The court concluded if the predicate act involves physical force and violence, "the risk of harm is so great that the inquiry [regarding the secondary analysis of Silver v. Silver] can be perfunctory." J.D., 207 N.J. at 488. In these cases, "the decision to issue an FRO 'is most often . . . self-evident.'" A.M.C. v. P.B., 447 N.J. Super. 402, 417 (App. Div. 2016) (quoting Silver, 387 N.J. at 127). It would be rare for proven physical assault to be deemed mere marital contretemps, and the court found no reported decision where marital contretemps was relied upon as a basis for denying a restraining order where physical assault was a proven predicate act.
Additionally, effective January 8, 2024, the PDVA was amended to include coercive control among the statutory factors courts must consider when determining whether to issue an FRO. N.J.S.A. 2C:25-29(a)(7). (“Any pattern of coercive control against a person that in purpose or effect unreasonably interferes with, threatens, or exploits a person's liberty, freedom, bodily integrity, or human rights with the court specifically considering evidence of the need for protection from immediate danger or the prevention of further abuse.”) Coercive control is not among the predicate acts enumerated in the PDVA; rather, it is analyzed pursuant to the second prong of Silver.
The trial court failed to make findings regarding the allegations of coercive control in its analysis of prong two. S.M.T. detailed S.A.'s acts of coercive control in limiting her travel, controlling the family's finances and her access to money, surveillance by various electronic means, and depriving her of sleep using lights, television noise, and spilling water on her.
The trial court stated: "It's clear from the contentions that it's somehow recognized by [S.M.T.] that [S.A.] feels he has a right to exert certain authority over her, and again, the [trial c]ourt doesn't pretend to understand the actual tenets of the faith or culture in that regard." The court noted actual tenets of faith and culture are not relevant as to whether acts of physical assault, sexual abuse, or coercive control have occurred.