Pamela Smith and David Smith have been married for five years, and are undergoing divorce proceedings while still residing together in the marital home. During a verbal argument in which both are yelling at each other and calling each other names and profanities , Pamela tries to walk past David and their shoulders inadvertently hit into each other. David turns around and with two hands and slightly pushes Pamela saying “Don’t touch me.” Pamela stumbles backwards over a shoe which had been left on the ground a few minutes earlier and she falls to the floor. There are no injuries other than a slight scrape mark on Pamela’s hand, and she does not need medical attention,
Pamela comes to your office wanting you to represent her in filing a domestic violence restraining order against David for either harassment or simple assault. Pamela tells you that there is no prior history of domestic violence by Davis, except for an incident two years ago in which David, while angry and intoxicated following a New Years Eve party , slapped Pamela in the face. He admitted his actions the following day and apologized.
Your initial research reveals at least two cases which may be relevant on the issue of domestic violence restraining orders , which reach different results. The first case is Peranio v. Peranio, 280 N.J. Super 47 (App. Div. 1995), https://www.courtlistener.com/opinion/2183328/peranio-v-peranio/ (Links to an external site.) in which the Appellate Division reversed a trial court’s finding of domestic violence and dismissed a restraining order. The second case is Cesare v. Cesare, 154 N.J. 394 (1998), https://www.courtlistener.com/opinion/1902533/cesare-v-cesare/ (Links to an external site.) in which the N.J. Supreme Court reversed the Appellate Division and reinstated the trial court’s finding of domestic violence and entry of a restraining order.
Please write a 3 part memorandum addressing the following:
PART 1: What will be your strongest arguments in favor of a restraining order, using analogizing and distinguishing techniques with reference to the Peranio case and the Cesare case
PART 2: What do you anticipate will be the strongest arguments which your adversary (David’s attorney) will make in opposition to a restraining order, again using analogizing and distinguishing techniques with reference to the Peranio case and the Cesare case?
PART 3: Address which arguments you feel are stronger – those supporting Pamela or those supporting David – and why.
Suggested Length of Memorandum: 3-5 pages double spaced.