J.D. v. M.D.F.

25 A.3d 1045 (2011)

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Nature of the Case

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Facts

From 1993 until 2006, J.D. (P), and M.D.F. (D), were engaged in a long-term relationship. They resided together and had two children. Following their separation, they became embroiled in a custody dispute. At all times since the end of the relationship, P continued to reside in the home that she and D had purchased together. The couple's two children resided with her, as did an older child of hers that she had from a relationship prior to D. P had begun a relationship with a new person, R.T., who she referred to as her boyfriend, and who was present during the events in question. P filed domestic violence complaint with the assistance of court personnel based on information P supplied and was transcribed on a court-approved form. P and her boyfriend, R.T., observed D outside of P's residence at 1:42 a.m. taking flash photographs. As soon as her boyfriend pulled aside the curtain to look, D drove away. The court-approved complaint form has a series of boxes identifying the numerous predicate offenses that can support issuance of a domestic violence restraining order, but on the complaint filed by P, none of the boxes for a predicate act was checked off. The form also has a space for reciting prior or pending court proceedings between the parties. In that part of the form, P's September 2008 complaint identified two Family Division matters by docket number. The two docket numbers apparently relate to the palimony dispute and a custody and parenting time matter. P identified several prior incidents of domestic violence. One being outside the residence taking pictures and asked her boyfriend 'how the accommodations were'; another where D climbed in her window and 'attempted to have relations' her; that D would come to the residence at various times and without notice; and despite locked doors and D was able to gain entry & harass' her. A Temporary Restraining Order (TRO) was issued, and a return date was set. P and R.T. showed, and D appeared as well. After giving her information, the court asked if there was anything else. P responded with multiple incidents none of which were listed in the complaint. The court offered D an opportunity to respond. D immediately said that many of the incidents about which P had just testified had occurred long ago and asserted that he had not known that P would be referring to them. D told the court that he 'really wasn't prepared.' D attempted to respond, and the court inquired in detail about several of those earlier incidents that had not been identified in the complaint. As for those listed in the complaint, D did not deny that he had gone to P's residence and had taken photographs in the early morning hours, but had only driven by slowly and was not parked. D was apparently gathering evidence to support a motion seeking to challenge Ps custody of their two children. D was taking late-night photographs of R.T.'s truck parked outside the home to assist him in his quest to have custody of the two minor children transferred to him. The court granted a Final Restraining Order (FRO). It was based on the additional evidence and not those incidents listed in the complaint. D appealed, and the court affirmed. This court granted review.