To obtain an FRO under the PDVA, a plaintiff must not only demonstrate defendant has committed a predicate act of domestic violence, but also that a restraining order is necessary for his or her protection. This is often referred to as a “two-prong” test. In the recent unpublished decision of S.H. v. E.H., the trial court analyzed the facts of the case and found that even though the defendant had committed a predicate act of domestic violence, the plaintiff did not prove that she needed a restraining order to protect her in the future.
The facts of the case are important. The plaintiff had previously obtained a temporary restraining order, but dismissed it after the parties reached a private agreement. The Husband and Wife agreed that the Wife would have sole and exclusive use and possession of the marital home. The Husband was given sole and exclusive use and possession of the parties’ beach house. The Husband/Defendant entered the marital home when the plaintiff was not there. She saw this on home security videos. She obtained a new domestic violence restraining order claiming predicate acts of harassment, trespass, burglary, and stalking.
The trial court ultimately rejected all of the predicate acts, except for trespass, but held that the plaintiff was not a credible witness and the trial court did not believe that she needed a final restraining order to protect her from future acts of domestic violence. Some of the testimony appears to be particularly damning with respect to the plaintiff’s requests. The defendant testified that he had entered the property to obtain his personal property, some jewelry, and some personal documents needed to establish that property being addressed in the divorce case were pre-marital. Some of those documents apparently were to establish that the property in which the Wife was then residing where actually his pre-marital property. He also admitted that he was posting a blog online to refute allegations being made by the plaintiff about him. The trial court found that the defendant’s testimony was believable and credible.
The plaintiff on the other hand testified that she was not truthful in the statements she made in seeking the TRO. She had failed to disclose the pending divorce. She had failed to include missing jewelry of her own, but then later testified the defendant had taken it.
The trial court found that the defendant absolutely was at the residence in violation of the civil restraints and that because the defendant knew that he was not supposed to be there, his actions constituted trespass. Upon finding a predicate act of domestic violence occurred, the court next considers if a restraining order is necessary to protect the victim from an immediate danger or to prevent further abuse. Specifically, factors the court should consider include, but are not limited to: (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 parenting time the protection of the victim's safety; and (6) The existence of a verifiable order of protection from another jurisdiction.
After considering the parties' testimony and other evidence, the trial court found plaintiff was not credible because she wavered, admitted to being untruthful, and the trial court believed she was trying to gain an advantage in the divorce. The trial court highlighted that the plaintiff filed two amendments to the original TRO, each of which seemed to heap or pile on more, yet, the plaintiff neglected to correct errors, she failed to disclose the pending divorce, and failed to mention the missing jewelry. On the other hand, the court determined defendant testified credibly because his answers were prompt and provided reasonable explanations for his actions. Also, he did not contradict himself. Generally, the appeals court will not disturb credibility findings based on a trial court’s perception of the parties' testimony.
It is not automatic that you get a Final Restraining Order if you establish a predicate act. In this case the process worked as it should. The trial court acknowledged that the defendant did something that would meet the legal criteria of trespass, but then considered the defendant’s actions in context.
If you have obtained a temporary restraining order you may need to amend the document prior to trial to correct errors. If you have been served with a restraining order you need to make sure you prepare to present a complete case. Either way, consulting with the attorneys at LaBletta & Walters will increase your ability to present the best case possible to the court.