Clarkson Fisher Jr.

A New Jersey appeals court on Tuesday ruled that a trial judge erred when she used her “equitable powers” to enter a restraining order against a man despite finding that his ex-girlfriend failed to prove he violated the state Prevention of Domestic Violence Act.

The three-judge Appellate Division panel, in a published ruling in M.C. v. G.T., said restraining orders should be issued only when there is sufficient evidence of an act of domestic violence.

The judges referred to the parties by the fictitious names of Monica and George, and noted that the two had dated for a period of time. Eventually, Monica filed a complaint against George, alleging that he committed an unspecified act of domestic violence and seeking a restraining order.

A Union County judge heard the matter and, after expressing doubts about both parties’ credibility, found there was not enough evidence to support a finding that George committed an act of domestic violence

Nevertheless, using her “equitable powers,” the judge filed a restraining order against George, who then appealed.

“George contends the judge exceeded her authority. We agree,” wrote Appellate Division Judge Clarkson Fisher Jr. Judges Thomas Sumners Jr. and Scott Moynihan joined in the ruling.

Fisher said the trial judge apparently relied on two prior Appellate Division rulings, from 1997: P.J.G. v. P.S.S. and N.B. v. T.B.

In P.J.G., the parties, called Patricia and Paul, filed cross-complaints against each other alleging acts of domestic violence. A trial judge in that case found that there was enough evidence to support a finding that Patricia committed an act of domestic violence, but found there was not enough evidence to support a similar finding against Paul. However, the judge issued restraining  orders against both. An appeals court vacated the restraining order against Paul.

“[U]nless a finding is made that the person charged committed an act of domestic violence the court lacks the jurisdictional basis to enter a final restraining order,” the P.J.G. court said.

“We agree,” Fisher said in M.C. “[T]he act does not authorize entry of a final restraining order absent preponderating evidence that the defendant committed an act of domestic violence.”

Fisher noted, however, that the panel in P.J.G. also ruled that a trial judge, using his or her “ample inherent power,” could issue a restraining order even if evidence of domestic violence or another statutory element were lacking.

Fisher said the “arguably incongruent conclusion” was based on the P.J.G. court’s reliance on the N.B. case, where a panel held that evidence in a failed domestic violence case could be used as justification for restraints in a separate matrimonial action.

Fisher suggested that the trial judge’s reliance on those two cases in M.C. might have been misplaced.

“Whatever we might think of these holdings, they do not support what occurred in the matter at hand,” Fisher said.

G.T.’s attorney, Amanda Wolf of the Red Bank law office of Randolph H. Wolf, could not be reached.

M.C. did not participate in the appeal.