713 A.2d 390 (N.J. 1998), Cesare v. Cesare

Citation:713 A.2d 390, 154 N.J. 394
Opinion Judge:[7] The opinion of the court was delivered by: Garibaldi, J.
Party Name:Kathleen CESARE, Plaintiff-Appellant, v. Richard CESARE, Defendant-Respondent.
Attorney:[6] Laura K. Abel argued the cause for appellant (Gibbons, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Ms. Abel and Lawrence S. Lustberg, on the brief). Dorothy L. Wright argued the cause for respondent (Ms. Wright, attorney; Donald W. Stieh, on the brief).
Case Date:June 03, 1998
Court:Supreme Court of New Jersey

Page 390

713 A.2d 390 (N.J. 1998)

154 N.J. 394

Kathleen CESARE, Plaintiff-Appellant,


Richard CESARE, Defendant-Respondent.

Supreme Court of New Jersey.

June 3, 1998

Argued March 16, 1998.

Page 391

[154 N.J. 397] Laura K. Abel, Newark, for plaintiff appellant (Crummy, Del Deo, Dolan, Griffinger & Vecchione, attorneys; Ms. Abel and Lawrence S. Lustberg, on the brief).

Dorothy L. Wright, Green Brook, for defendant-respondent (Ms. Wright, attorney; Donald W. Stieh, Bridgewater, on the brief).

The opinion of the Court was delivered by


This appeal involves a domestic violence dispute and the interpretation of the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -33 ("Act" or "DVA"). Specifically, this case concerns the standard of appellate review that should be applied and the role a past history of abuse should play under the Act in evaluating a domestic violence complaint that alleges terroristic threats and harassment. The trial court found that defendant's conduct violated the Domestic Violence Act and determined that cause existed to issue a restraining order. The Appellate Division reversed, concluding that the trial court's decision constituted a "manifest denial of justice." Cesare v. Cesare, 302 N.J.Super. 57, 64, 694 A.2d 603 (1997). We granted plaintiff's petition for certification, 152 N.J. 9, 702 A.2d 348 (1997), and now reverse.



Domestic violence is a serious problem in our society. Described as a "pattern of abusive and controlling behavior injurious to its victims," Peranio v. Peranio, 280 N.J.Super. 47, 52, 654 A.2d 495 (App.Div.1995); accord Corrente v. Corrente, 281 N.J.Super. 243, 246, 657 A.2d 440 (App.Div.1995), domestic violence "persists as a grave threat to the family, particularly to women and [154 N.J. 398] children." State v. Chenique-Puey, 145 N.J. 334, 340, 678 A.2d 694 (1996). Studies show that between three and four million women each year, from all socio-economic classes, races, and religions, are battered by husbands, partners, and boyfriends. Brennan v. Orban, Jr., 145 N.J. 282, 299, 678 A.2d 667 (1996) (citations omitted); see also William G. Bassler, The Federalization of Domestic Violence: An Exercise in Cooperative Federalism or a Misallocation of Federal Judicial Resources?, 48 Rutgers L.Rev. 1139, 1140 (1996) ("No class, religion or race is immune.").

The domestic violence epidemic has also hit New Jersey. In 1993, 66,000 cases of domestic violence were reported, a 27% increase over 1992. Preamble, L. 1994, Joint

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Resolution No. 2, reprinted at N.J.S.A. 2C:25-17. In 1996, 85,018 domestic violence offenses were reported in New Jersey and women were victims in 80% of those offenses. Department of Law and Public Safety, Fourteenth Annual Domestic Violence Offense Report (1996). In enacting the DVA, the Legislature declared:

[T]here are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants; that a significant number of women who are assaulted are pregnant; that victims of domestic violence come from all social and economic backgrounds and ethnic groups; that there is a positive correlation between spousal abuse and child abuse; and that children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.

[ N.J.S.A. 2C:25-18.]

Until recently, however, the law in New Jersey did not take seriously the plight of abused and battered women. "Perhaps as a result of custom, practice, societal mores or other inappropriate reasons, in the past, victims of domestic violence were not adequately protected by the police, the courts, or society as a whole." Sperling v. Teplitsky, 294 N.J.Super. 312, 318, 683 A.2d 244 (Ch.Div.1996). As noted by the Legislature in its findings, domestic violence victims received "different treatment from similar crimes when they occur[ed] in a domestic context," and experienced "substantial difficulty in gaining access to protection from the judicial system, particularly due to that system's inability to [154 N.J. 399] generate a prompt response in an emergency situation." N.J.S.A. 2C:25-18. The Legislature enacted the Prevention of Domestic Violence Act in response to that situation. See Sperling, supra, 294 N.J.Super. at 320, 683 A.2d 244 (finding that Legislature, in adopting the Act, "sought to redress a perceived wrong").

The Domestic Violence Act was intended "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18 (emphasis added). The Legislature attempted to address the problem comprehensively by requiring an immediate response when an offense is suspected, by mandating training for judges as well as court and law enforcement personnel, and by demanding uniformity in the prosecution and adjudication of claims. See N.J.S.A. 2C:25-18; Preamble, L.1994, Joint Resolution No. 2, reprinted at N.J.S.A. 2C:25-17; D.C. v. F.R., 286 N.J.Super. 589, 597, 670 A.2d 51 (App.Div.1996); N.J.S.A. 2C:25-20. The legislative findings underlying the Domestic Violence Act assert:

It is the intent of the Legislature to stress that the primary duty of a law enforcement officer when responding to a domestic violence call is to enforce the laws allegedly violated and to protect the victim.... It is further intended that the official response to domestic violence shall communicate the attitude that violent behavior will not be excused or tolerated, and shall make clear the fact that the ... [A]ct will be enforced without regard to the fact that the violence grows out of a domestic situation.

[ N.J.S.A. 2C:25-18.]

Most importantly, the law was meant to "ensure[ ] that spouses who were subjected to criminal conduct by their mates had full access to the protections of the legal system." Corrente, supra, 281 N.J.Super. at 248, 657 A.2d 440; Peranio, supra, 280 N.J.Super. at 54, 654 A.2d 495.

To reach those goals, the Act provides both emergency and long-term civil and criminal remedies and sanctions and encourages the "broad application" of those remedies in the courts of this State. N.J.S.A. 2C:25-18. In the criminal context, an abuser may be subject to arrest upon probable cause and, depending on the existence of various conditions, the seizure of any dangerous weapons he possesses and the revocation of any licenses or [154 N.J. 400] permits for the use, possession, or ownership of those weapons. N.J.S.A. 2C:25-21. In the civil context at issue here, the Act permits victims to file a complaint alleging the commission of an act of domestic violence and to seek emergency ex parte relief. N.J.S.A. 2C:25-28. If a victim proves by a preponderance of the evidence, at a hearing in the Family Part

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held within ten days of the filing of the complaint, that the accused committed an act of domestic violence, or if the accused admits to committing such an act, the court may then "grant any relief necessary to prevent further abuse." N.J.S.A. 2C:25-29. Among the remedies provided are: the exclusion of the defendant from the marital premises; visitation orders or suspension of visitation; monetary compensation for losses suffered payable by the defendant; mandatory counseling for defendant; a grant of temporary custody; an order restraining the defendant from making contact with the plaintiff; and the prohibition of defendant from possessing any firearms or certain other weapons. N.J.S.A. 2C:25-29.

The Act and its legislative history confirm that New Jersey has a strong policy against domestic violence. See In re Principato, 139 N.J. 456, 463, 655 A.2d 920 (1995); see also State v. Hoffman, 149 N.J. 564, 584, 695 A.2d 236 (1997) ("Our law is particularly solicitous of victims of domestic violence...."). Because the Domestic Violence Act is remedial in nature, it is to be liberally construed to achieve its salutary purposes. See Young v. Schering Corp., 141 N.J. 16, 25, 660 A.2d 1153 (1995); J.N. v. D.S., 300 N.J.Super. 647, 651, 693 A.2d 571 (Ch.Div.1996).


To subject a defendant to one of the remedies discussed above, a plaintiff must first prove that the defendant committed an act of domestic violence, as defined by the statute. N.J.S.A. 2C:25-29(a). N.J.S.A. 2C:25-19(a) specifically defines domestic violence. That section provides:

[154 N.J. 401] "Domestic violence" means the occurrence of one or more of the following acts inflicted upon a person protected under this act by an adult or an emancipated minor:


(3) Terroristic threats, N.J.S. 2C:12-3


(13) Harassment, N.J.S. 2C:33-4 1

[ N.J.S.A. 2C:25-19(a).]

As observed by the courts in Corrente, supra, and Peranio, supra, "[i]n enacting the domestic violence law, the Legislature did not create a new class of offenses or interdict acts which otherwise were not addressed by the criminal law." 281 N.J.Super. at 248, 657 A.2d 440, 280 N.J.Super. at 54, 654 A.2d 495. Rather, the Act incorporates a variety of criminal statutes into its civil and criminal framework.

In the civil context, a court must determine by a preponderance of the evidence whether an act of terroristic threats or harassment, or any other listed prohibited conduct, has been committed. N.J.S.A. 2C:25-19(a), -29(a). The Act further provides:

The court shall consider but not be limited to the following factors:

(1) The previous history of domestic violence between the plaintiff and defendant, including threats, harassment and physical abuse;

(2) The existence of immediate danger to person or property;

(3) The financial circumstances of the plaintiff and defendant;

(4) The best interests of the victim and any child;

(5) In determining custody and visitation the protection of the victim's safety; and

(6) The existence of a verifiable order of protection...

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