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A.K. v. D.K.

June 21, 2007


On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Sussex County, Docket No. FV-19-000592-05.

Per curiam.



Argued May 1, 2007

Before Judges Coburn, Axelrad and Gilroy.

Plaintiff A.K. filed a complaint against her husband D.K., under the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. Plaintiff appeals from the December 14, 2005, order denying her request for a Final Restraining Order (FRO). We reverse and remand to the trial court for further proceedings consistent with this opinion.

Plaintiff was previously married to L.M. A son, L.J.M., was born of that marriage on April 28, 1994. Plaintiff's former husband was abusive, having raped plaintiff on several occasions and having sexually abused their son. Because of his abusive conduct, plaintiff filed and prosecuted a domestic violence complaint against L.M. In 1998, plaintiff filed for divorce from L.M. and began dating defendant in April of the same year. Following her divorce from L.M., plaintiff and defendant married on January 25, 1999. A son, W.K., was born of their marriage on March 31, 1999. Following their marriage, defendant adopted L.J.M., changing the child's name to L.J.K.

On June 27, 2005, plaintiff filed a domestic violence complaint alleging: "[T]he defendant has threatened her life on several occasions. Defendant verbally and mentally abuses her on a daily basis along with neglect[ing] her medical problems." The complaint also referenced past acts of domestic violence where plaintiff alleged that she "ha[d] been assaulted, pushed down the stairs," and "defendant said he [would] kill her on several occasions." A temporary restraining order (TRO) was entered against defendant that day. On December 14, 2005, the judge issued an oral decision denying plaintiff's request for a FRO and dismissing the complaint. A confirming order was entered that day.

The FRO hearing was conducted over eight non-consecutive trial days. Testifying for plaintiff were: plaintiff; Dr. Linda Bickery, plaintiff's treating family physician; Dr. Jessica Platt, a child psychologist; and E.N., plaintiff's mother. Testifying for defendant were: defendant; Dr. Avanente Tamagnini, a child psychologist; Dr. Dennis Stainken, a toxicologist; and W.E.K., defendant's father.

Plaintiff testified to the June 26, 2005 incident as follows. Plaintiff's parents, visiting from Poland, gave plaintiff $400 to use in applying for American citizenship. Plaintiff deposited her parents' check into the parties' joint checking account. On June 20, 2005, plaintiff wrote a check in the amount of $390 to herself; exchanged the personal check for a bank cashier's check; and sent the cashier's check to the Department of Homeland Security to commence her application for citizenship.

On June 24, 2005, defendant called plaintiff into the kitchen, where he "had the checkbook in his hand." Defendant "started to waive [sic] [the checkbook] at me, yelling at me that how dare my father [give] me the money for my birthday, how dare I apply for the citizenship without his authorization. He called me and my father [thieves]." Following the encounter, defendant forcibly shut the door as plaintiff tried to leave and ordered her to go upstairs. Plaintiff refused and left the house with her father to obtain proof from the bank that she had not stolen any money. After realizing that the bank was closed, plaintiff returned home, stopping on the way at the Vernon Police Department where she reported defendant's abuse but did not sign a complaint, desiring to give him one last chance.

On June 26, 2005, plaintiff's father returned to Poland, with his wife accompanying him to the airport. After her parents left for the airport, defendant came out of the house, "furious":

I was with the children outside on the swing set. My husband came out of the house very angry. He said to me inside the house right now. I said to him I don't want to . . . go inside, I'm not going.

He said to me inside right now and I said I'm not going. Then he said that my father would regret that he left my [m]om behind, that if he would come back again in August[,] he's going to hurt him, he's going to hurt my parents. He went towards the house. He came back after a few minutes and he screamed, yelling to me and to the kids that he will hurt us and he will kill us all.

When plaintiff finally entered the house, she found that defendant had locked himself in the master bedroom, so she gave the children a bath and put them to bed. After the children were in bed, defendant grabbed her, and pushed her onto the bed, yelling that if her mother did not leave the house by next Saturday, "he's going to hurt us, he's going to kill us and I'm gonna be dead." Plaintiff filed her complaint the following day.

Concerning the prior alleged incidents of domestic violence, plaintiff testified that defendant was abusive, both physically and mentally, as far back as April 1999. The incidents included: sexual assault in April 1999 by forcing her to have sexual relations while recovering from the delivery by caesarian section of W.K.; rape in the spring of 2002; verbal and physical abuse in October 2002, with defendant calling her a "stupid Polish bitch" and pushing plaintiff's mother into the wall of the master bedroom; rape again in November 2002; assault in February 2003, after plaintiff had a hysterectomy due to severe endometriosis, where defendant dragged plaintiff around their bed, pushed her across the hallway floor, and threw her onto the staircase; physical and verbal abuse in the Spring of 2003, when defendant told her that she was not a woman anymore because she did not have a uterus and forced her to perform oral sex on him; verbal abuse in November 2004, when defendant called L.J.K. a "stupid Peruvian bastard;" verbal and physical abuse in November 2004, when, following an argument concerning plaintiff's need for an ambulance, defendant grabbed and threw plaintiff onto the sofa, yelling "who did you call this time, you stupid Polish bitch?"; a terroristic threat in November 2004, following a police response to the home at the request of a friend of plaintiff's mother, defendant confronted plaintiff with a belt in his hands saying, "that if I will ever talk ...

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