January 3, 2008
STELLA OKAFOR, PLAINTIFF-RESPONDENT,
NWAKOZOH OKAFOR, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Essex County, FV-07-3312-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 3, 2007
Before Judges A.A. Rodríguez and C.L. Miniman.
Defendant husband, Nwakozoh Okafor, appeals from the entry of a second Amended Final Restraining Order (FRO) on September 28, 2006, restraining him from having contact with plaintiff wife, Stella Okafor, and providing other relief. No appeal was timely filed from the initial June 27, 2006, FRO or the July 19, 2007, Amended FRO. The additional relief provided in the second amended order was an award of $3750 for five months of rent, $650 for reimbursement of monies loaned to the wife by third parties for out-of-pocket expenses, $2000 for physical pain and suffering from beatings inflicted by the husband, $1000 for suffering as a result of the husband's lock out of the wife, and $5000 for punitive damages. We affirm.
The parties were married in Nigeria in 2004, but the wife did not arrive in the United States until April 4, 2006. The husband called the police on May 8, 2006 to report that the wife had struck him in the eye. The police smelled alcohol on the husband's breath and he would not allow them to see his eye. However, the police saw that the wife's eye was swollen and bruised and asked her what had happened. She said that her husband hit her three days earlier for not cleaning the house, had come home drunk that night, ordered her out of the house, packed her belongings into a box and told her to live on the street. When she tried to take her pocketbook, her husband bit her arm and so she slapped him. The police believed that this is what caused the husband's claimed injury. They took the husband to the hospital emergency room, where no physical evidence of injury was detected, then to the police station, where he was charged with criminal assault and harassment. He was later convicted of both offenses in the West Orange Municipal Court.
The husband disputes this account on appeal. He claims that Stella's eye was already injured when she arrived from Nigeria. He claims that she was unhappy waiting for her visa and hit him when he suggested that she leave West Orange. He further alleges that she inflicted the bite marks on herself and never received medical treatment for any claimed injury.
The police took Stella to the station, where she submitted a statement, but did not request a restraining order at that time. Stella said that they then took her to the hospital, where she remained for several hours until she was taken to a women's shelter. She lived in the shelter for about four days, until friends of her parents picked her up and gave her a place to stay. She lived with them for two months, followed by four days in another shelter, and then she moved in with other friends.
When she later requested a temporary restraining order, Stella explained that her husband had been verbally, emotionally and sexually abusive. She said that he did not allow her to leave her home or see family or friends. He also took possession of her green card, preventing her from getting a job. On May 17, 2006, she obtained a temporary restraining order preventing her husband from contacting her. On June 27, 2006, the judge found that the husband had violated the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-1 to -35, and entered a FRO. She ordered the husband to attend a batterer's prevention program and to pay the wife money for support and rent for a new home. The husband contacted his wife's lawyers on June 30, 2006, to tell them that he would not send the court-ordered support payments. He called again on July 3, 2006, to say that the support check was in the mail, but not the rent check.
The husband filed a motion to stay the June 27, 2006, order pending appeal and the wife filed a motion for compensatory and punitive damages. The husband claimed that he never received a copy of his wife's motion. The parties appeared on July 19, 2006, and the judge denied the husband's motion, ordering him to make the payments, turn over financial documents and submit to a deposition. After some delay, the husband submitted to the deposition, but he missed the deadline to pay support and rent and a bench warrant was issued for his arrest.
The court scheduled a hearing for August 9, 2006, on the wife's motion for damages, but it was rescheduled to September 28, 2006. The husband failed to appear. He notified the judge's chambers that he could not attend for medical reasons and the judge required him to fax medical proof of his illness, but no such proof was received prior to the date and time for the hearing. The husband claims that he did fax a doctor's note on the morning of September 8, 2006, but he has not provided any proof of an actual facsimile transmission.
The judge suggested on the record that the husband failed to appear because of the bench warrant and she conducted the hearing in his absence. The judge found that the husband mistreated the wife for the entire duration of her time in this country and ordered him to pay five months of rent at $750 a month for a total of $3750. She also ordered the husband to repay the $650 that his wife owed the people who had been taking care of her. She awarded compensatory damages of $2000 for pain and suffering caused by the beatings and $1000 for suffering caused by displacement. She also determined that the wife had satisfied the legal requirements for obtaining punitive damages and, based on the husband's financial information, awarded her $5000. Finally, the Amended FRO also included $125 a week in ongoing support and compensation for medical bills.*fn1 This appeal followed the entry of this second Amended FRO.
Defendant raises the following issues on appeal:
THE TRIAL COURT'S EXCLUSION OF THE DEFENDANT/APPELLANT, NWAKOZOH OKAFOR, FROM THE TRIAL OF SEPTEMBER 28, 2006 WAS AN ERROR THAT MADE THE RESULTANT ORDER/JUDGMENT ENTERED SEPTEMBER 28, 2006 UNSUSTAINABLE, AND, THEREFORE, THAT ORDER REQUIRING DEFENDANT/APPELLANT TO PAY $12,350 TO THE PLAINTIFF/RESPONDENT SHOULD BE VACATED.
THE TRIAL COURT ERRED WHEN IT CONDUCTED THE HEARING WITHOUT DEFENDANT/APPELLANT PRESENT, INSTEAD OF MOVING THE HEARING TO ANOTHER DATE TO ACCOMMODATE THE SICK PARTY.
LAW ENFORCEMENT OFFICERS, WEST ORANGE POLICE, COMMITTED AN ERROR WHEN THEY ARRESTED VICTIM, NWAKOZOH OKAFOR, INSTEAD OF PERSON WHO COMMITTED ACT OF DOMESTIC VIOLENCE, STELLA OKAFOR.
IN ENACTING PREVENTION OF DOMESTIC VIOLENCE ACT, LEGISLATURE INTENDED TO PROTECT VICTIMS, NOT TO PUNISH PERSON WHO COMMITTED ACT OF DOMESTIC VIOLENCE.
LEGISLATIVE FINDINGS UNDERGIRDING PREVENTION OF DOMESTIC VIOLENCE ACT INDICATE THAT FOCUS OF THE LEGISLATURE WAS REGULAR SERIOUS ABUSE.
UNDER PREVENTION OF DOMESTIC VIOLENCE ACT, TRIAL COURT MUST WEIGH ENTIRE RELATIONSHIP BETWEEN THE PARTIES AND MUST SPECIFICALLY SET FORTH THEIR FINDINGS OF FACTS IN THAT REGARD, AND IN MAKING THEIR DETERMINATIONS, COURTS CAN CONSIDER EVIDENCE OF DEFENDANT'S PRIOR ABUSIVE ACTS, REGARDLESS OF WHETHER THOSE ACTS HAVE BEEN SUBJECT OF DOMESTIC VIOLENCE ADJUDICATION.
Pursuant to R. 3:16, a defendant has the right to be present at every stage of trial, unless the defendant expressly or impliedly waives this right. A defendant may waive the right to be present by implication if his or her conduct reflects a "knowing, voluntary, and unjustified absence" after receiving notice of the trial date or if the trial has already begun. R. 3:16(b). Should a defendant fail to appear at trial and satisfy the requirements of a voluntary waiver, the court may proceed in absentia. State v. Finklea, 147 N.J. 211, 220 (1996), cert. denied, 522 U.S. 837, 118 S.Ct. 110, 139 L.Ed. 2d 63 (1997). The purpose of the rule is to preclude defendants from "prevent[ing] the trial from proceeding until the defendant is willing to appear." Id. at 219.
The record in this case establishes that one hour after the scheduled start time for the September 26, 2006, hearing the judge had not received the documentation that she requested. The husband bases his challenge to this fact finding on a copy of a note and a fax cover sheet included in the appendix to his appellate brief. However, evidence submitted for the first time on appeal is outside the scope of review. Middle Dep't Insp. Agency v. Home Ins. Co., 154 N.J. Super. 49, 56 (App. Div. 1977), certif. denied, 76 N.J. 234 (1978). Even if this were not so, these documents did not prove the date and time of an actual facsimile transmission and do not establish a basis for reversing the judge's decision to proceed in the husband's absence.
The issues raised by the husband that address the merit of the judge's conclusion that defendant committed an act of domestic violence cannot be considered by us because the husband has failed to provide us with transcripts of the hearings conducted on June 27 and July 19, 2006, contrary to the mandate of R. 2:5-3(a). Without those transcripts before us, we cannot determine whether the judge's findings and conclusions are or are not supported by substantial credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974). We thus affirm the entry of the FRO and the Amended FRO.
With respect to the second Amended FRO, we note that defendant has not contended on appeal that the record of September 28, 2006 does not support the quantum of damages awarded in this case. Damages were the only issue before the court on that date and the proofs were confined to that issue. After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that the issues presented by the husband are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by Judge Margaret Hayden in her oral opinion delivered on September 28, 2006. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. See Rova Farms Resort, Inc., supra, 65 N.J. at 483-84. As a result, the second Amended FRO is affirmed.