In the unpublished (non-precedential) decision of K.E.M. v. S.R.A., the Appellate Division used the trial court’s findings to reinstate a Final Restraining Order (“FRO”) based on the predicate act of cyber harassment.

In this case, while the facts are salacious, the procedure is just as interesting in the lawyer world. The plaintiff obtained an FRO against the defendant after a full trial based on predicate acts of harassment and cyber harassment, and a continuing need for protection based on prior history. The defendant appealed. While the appeal was pending, the trial court entered an Amended FRO sua sponte – on its own without a request from a party – to remove cyber harassment as the predicate act upon which the FRO was based, instead including harassment only. However, harassment was not a predicate act “checked off” on the initial Temporary Restraining Order (“TRO”) and, although it was “checked off” on the amended TRO, the plaintiff said it was an accident by the clerk. More importantly, the plaintiff’s attorney confirmed the alleged offenses at the outset of trial and excluded harassment. [Note, on a TRO form, in the predicate act section, there are boxes of the optional predicate acts that are checked off/not checked off, indicating which predicate act the TRO is based upon, and a plaintiff is bound by the ‘four corners’ of the TRO when presenting his/her case otherwise due process is violated because the defendant would not be on notice of additional allegations for which he/she should have prepared a defense]. Therefore, given that harassment was excluded at trial, the defendant’s due process rights were violated because a case (and defense) was not presented on harassment.

Although the Appellate Division had to vacate the amended FRO, it found it necessary to reinstate the initial FRO with original jurisdiction, meaning on its own and not returning the case to the trial court. In doing so, the Appellate Division relied upon the trial testimony and evidence and the trial court’s findings as to credibility and found that an FRO was required to protect the plaintiff. Thus, the Appellate Division could not simply vacate the faulty FRO without reinstating the initial FRO. Interestingly, the defendant also appealed on the basis that the trial court had no authority to modify the FRO while his appeal was pending [NOTE: filing an appeal stays the trial court’s jurisdiction except for modification]. The Appellate Division did not address this aspect because that FRO was vacated so it became moot.

Onto the facts. In this case, the parties had a meaningful age difference, given their ages when their on/off relationship started with the plaintiff being 14 years old and defendant being 18 years old at that time. The pertinent acts of domestic violence include:

• The defendant posted sexual videos of the parties together without plaintiff’s consent and continued to do so after she told him to stop;
• The defendant slapped the plaintiff;
• The defendant told the plaintiff that he had multiple personalities and one of the personalities tried to kill the plaintiff multiple times;
• The defendant choked the plaintiff while engaging in sexual activity to the extent she could not breathe and tried to push him off of her;
• The defendant grabbed the plaintiff’s hair and yanked her, cracking her neck, and then described how he could kill someone that day after the plaintiff yelled that he could have killed her/could kill someone that way;
• The defendant pulled out a knife and told the plaintiff to back away while grabbing her wrist.

In addition to the above, cyber harassment arose per the following:

• The parties argued in Instagram messages in which the defendant claimed he was his alter-ego, the same alter-ego that the defendant said had tried to kill the plaintiff per the above, thereby adding context for the court as to the plaintiff’s fear;
• That Instagram activity continued on text;
• That Instagram and then text activity continued on Facebook;
• The Facebook activity extended to the defendant having his brother harass the plaintiff on Facebook;
• The Facebook activity continued on Snapchat even after the plaintiff procured the TRO, which by the way is contempt.

Notably, the defendant admitted to all of the activity on the three social media platforms (Instagram, Facebook (including giving his brother the plaintiff’s Facebook contact information) and Snapchat)). The plaintiff even admitted that the online activity came from a place of anger and to make her feel terrible, saying further that the purpose was to calm his nerves and acknowledging that the comments were public to the world. Also notable is that the arguments on social media surrounded whether the defendant had dissociative disorder (i.e. the multiple personalities/alter-egos, one of which the defendant said had tried to kill the plaintiff).

Arguably, the acts of cyber-harassment also qualified as harassment, but this case reminds practitioners of the importance to not exclude predicate acts that could apply even if they may seem redundant. Had the Appellate Division not reinstated the initial FRO, the plaintiff would have lost her protection when the later FRO was vacated. A comparison is below:

“A person commits the crime of cyber harassment if, while making a communication in an online capacity by means of any electronic device or any social networking site and with the purpose to harass another, the person:
(1) threatens to inflict injury or physical harm to any person or the property of any person;
(2) knowingly sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his [or her] person; or
(3) threatens to commit any crime against the person or the person’s property.

In comparison, under New Jersey Statute, harassment is committed if a person:

a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.

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