July 25, 2008
SUJATHA SEBASTIAN, PLAINTIFF-RESPONDENT,
BHARATH NALLAPU, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Bergen County, Docket No. FV-02-02519-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 15, 2008
Before Judges Parker and Gilroy.
Defendant Bharath Nallapu appeals the Family Part's July 31, 2007 final restraining order (FRO) entered against him, pursuant to the Prevention of Domestic Violence Act (Act), N.J.S.A. 2C:25-17 to -35. We affirm.
After dating for less than one month, plaintiff decided in late May 2006 that she was not interested in continuing a relationship with defendant, telling him "that I just wanted a break from him as a nice way of saying that I didn't want to see him anymore." After the breakup, defendant continued to see and communicate with plaintiff by: 1) making unsolicited telephone calls to both her personal cellular phone, and her work phone, including calling from third-party telephones so that plaintiff was unable to screen his telephone calls; 2) appearing at the place where plaintiff was taking courses for the Law School Aptitude Test (LSAT) and speaking to one of plaintiff's instructors; 3) sending plaintiff numerous unsolicited e-mails, many of which referenced titles of papers that plaintiff had written for college courses that defendant had obtained over the Internet, without plaintiff's knowledge or permission.
After defendant appeared at her LSAT class, plaintiff made it "very clear" to defendant that she did not want to see him anymore. On June 21, 2006, plaintiff's father sought out defendant at the YMCA in Hackensack and requested that defendant not contact or harass his daughter again.
Although defendant left the country on August 23, 2006, he continued to send plaintiff unsolicited e-mail communications. When defendant returned to the United States in June 2007, he visited plaintiff's mother's residence after learning of plaintiff's father's death. On visiting the home, plaintiff did not ask for plaintiff's mother, but rather inquired of plaintiff's brother as to plaintiff's whereabouts and whether he could see her. Plaintiff's mother escorted defendant out of her home, telling him to leave immediately or she would call the police and file a restraining order.
On June 21, 2007, plaintiff filed a domestic violence complaint against defendant, alleging that defendant had harassed and stalked her after she had terminated their dating relationship in May 2006. A temporary restraining order (TRO) was entered that day, prohibiting defendant from having any oral, written, personal, or electronic contact with plaintiff. On July 19, 2007, defendant filed a cross-complaint under the Act, alleging harassment.
On July 26, 2007, and July 31, 2007, an FRO hearing was conducted by Judge Kenneth Slomienski. The judge determined that defendant had committed the predicate act of harassment, contrary to N.J.S.A. 2C:33-4c, which led to the entry of the FRO, from which defendant now appeals. The judge also determined that defendant failed to prove that plaintiff had committed an act of domestic violence, dismissing defendant's complaint and vacating the TRO previously entered thereunder.*fn1
In reaching his decision, the trial judge determined that plaintiff was credible and defendant was not; plaintiff had instructed defendant not to communicate with her and to leave her alone; defendant continued to send plaintiff unsolicited e-mail communications for approximately one year thereafter; the e-mail communications "annoy[ed] her, upset her, and cause[d] her alarm"; and that the numerous e-mails over the one-year period of time constituted a "pattern of harassment under the statute."
On appeal, defendant argues that "the trial court erred in finding harassment under the Domestic Violence Law." This argument is not supported by the record.
"The scope of appellate review of a trial court's fact-finding function is limited. The general rule is that findings by the trial court are binding on appeal when supported by adequate, substantial, credible evidence." Cesare v. Cesare, 154 N.J. 394, 411-12 (1998). Furthermore, "[b]ecause of the family courts' special jurisdiction and expertise in family matters, appellate courts should accord deference to family court factfinding." Id. at 413. We grant substantial deference to a trial court's findings of fact and conclusions of law, which will only be disturbed if they are "'manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence.'" Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (quoting Fagliarone v. Tp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).
We have considered defendant's argument in light of the record and the applicable law. We are satisfied that the argument is without sufficient merit to warrant discussion in a written opinion. We affirm substantially for the reasons expressed by Judge Slomienski in his oral opinion of July 31, 2007. R. 2:11-3(e)(1)(A) and (E). Nevertheless, we add the following comments.
Defendant argues that the trial judge did not "make a specific finding that the defendant acted with the purpose to harass." Defendant contends that the e-mail communications sent to plaintiff were not anonymous; were not sent at extremely inconvenient hours; did not contain offensive language or threats of violent behavior; and that the manner of the e-mail communications was not likely to cause annoyance or alarm. Defendant argues that his e-mails only established a course of conduct of a persistent suitor, and did not violate the harassment statute, citing Sweeney v Honachefsky, 313 N.J. Super. 443 (App. Div. 1998). We disagree.
Before a defendant may be found to have committed an act of domestic violence under the Act, "a plaintiff must first prove that the defendant committed an act of domestic violence, as defined by the statute." Cesare, supra, 154 N.J. at 400. N.J.S.A. 2C:25-19a defines fourteen acts on which a finding of domestic violence may be entered. One of the acts alleged in the complaint was harassment, N.J.S.A. 2C:25-19a(13).
One violates the harassment statute, N.J.S.A. 2C:33-4c, when "a person . . . with purpose to harass another . . . [e]ngages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person." Integral to finding harassment constituting domestic violence is a "purpose to harass" by a "'course of alarming conduct' or repeated acts intended to alarm or seriously annoy another." Corrente v. Corrente, 281 N.J. Super. 243, 249 (App. Div. 1995) (quoting Grant v. Wright, 222 N.J. Super. 191, 196 (App. Div.), certif. denied, 111 N.J. 562 (1988)).
Here, the trial judge determined that contrary to specific instructions from plaintiff and her father, defendant intentionally continued to send unsolicited e-mails to plaintiff for approximately one year and that the contents of some e-mails contained language that caused her to be annoyed, upset, scared, and alarmed. The record amply supports these findings, and we find no reason, therefore, to interfere with the trial judge's sound conclusions. See Bonnco Petrol, Inc. v. Epstein, 115 N.J. 599, 607 (1989) (holding that a trial court's factfindings bind the appellate court if supported by evidence, especially when the evidence is testimonial and the "trial court has had the opportunity to observe the witnesses and determine their credibility").
We reject defendant's argument that his conduct falls under the umbrella of Sweeney. In Sweeney, following approximately a six-week period of dating, plaintiff terminated the parties' relationship on February 17, 1997, after which defendant, for a period of seven days, left notes in plaintiff's car, spoke with her on the telephone, and went to her home to talk to her. Sweeney, supra, 313 N.J. Super. at 444-45. On appeal from the trial court's determination that defendant had committed harassment, we reversed, concluding that "the conduct . . . in terms of domestic violence, [was] marginal at best" because "[t]here was never the slightest suggestion of physical or verbal abuse, defendant never made any threats of any kind to plaintiff . . . and he did not use offensive language." Id. at 447. Acknowledging that the gravaman of the harassment statute requires "a purpose to achieve that result or a course of alarming conduct," ibid, we held that the "law must have some tolerance for a disappointed suitor trying to repair a romantic relationship when his conduct is not violent or abusive or threatening[,] but merely importuning." Id. at 448. We find Sweeney distinguishable from the present matter.
Here, defendant had threatened to show up at plaintiff's workplace or at her father's home if she would not speak with him after she had terminated their relationship. Although plaintiff and plaintiff's father had instructed defendant not to communicate with plaintiff, defendant continued to do so in an unsolicited pattern of conduct for one year, sending plaintiff over forty e-mails. Although the e-mails neither contained abusive language, nor explicit threats of future violent behavior, several of the e-mails contained innuendoes that would cause a reasonable person alarm. Certain e-mails contained references to papers that plaintiff had written in college and to the name of one of her freshman year professors, neither of which she had informed defendant of, establishing that defendant was searching her name to obtain personal information over the Internet, causing her to feel "scared" and "threatened."
In an e-mail on August 18, 2006, after acknowledging that his e-mails and voicemails were causing plaintiff "a lot of aggravation," defendant stated, "I hate, hate doing this, but it looks like I don't have any option." Some e-mails were sent to plaintiff's e-mail address at work, even though she had not given defendant that address, causing problems for plaintiff at work because her employer "has a policy that we can't receive personal e-mails." In an e-mail dated September 27, 2006, knowing that plaintiff did not want to have any communication with him, defendant sent her an e-mail at work inquiring whether there was an opening for a "development intern" at her place of employment.
With defendant acknowledging that his constant bombardment of e-mails and voicemails were aggravating plaintiff, the finding that defendant engaged in this course of conduct for the purpose to annoy is well founded.