On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Burlington County, Docket No. FV-03-0422-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Sapp-Peterson and Alvarez.
Defendant, Oluseji Kuye, appeals from a final restraining order (FRO) entered under the Prevention of Domestic Violence Act, N.J.S.A. 2C:25-17 to -35 (DVA). The order was entered following a final hearing on a temporary restraining order (TRO) issued by the court on September 14, 2007 pursuant to a domestic violence complaint filed against him on that date by his wife, Christiana Kuye. We affirm the court's finding that defendant committed an act of harassment based upon a sexual assault occurring on January 2, 2006, but remand for further proceedings to determine whether an FRO should issue as a result of this event. We reverse the finding of harassment based upon damaging plaintiff's laptop computer.
Plaintiff and defendant are married and are the parents of two children born of their union. They were married in 1998 in their native Nigeria. Defendant moved to the United States in 1999. He filed an immigration petition that eventually allowed plaintiff and the children to join him in 2004. Plaintiff claims that a year after her arrival, marital discord erupted and defendant's relationship with her and the children began to deteriorate. On September 14, 2007, plaintiff filed a domestic violence complaint seeking a temporary restraining order against defendant.
In the complaint, plaintiff alleged that defendant: (1) told her that he would do something to send her to jail; (2) on September 12, 2007, threatened to break her TV and to beat her up; (3) on August 7, 2007, broke her laptop; (4) awakened her at two a.m. every day and verbally abused her for one to two hours; and (5) on January 2, 2006, forced her to have sex that resulted in her bleeding. Only defendant and plaintiff testified at the hearing. At its conclusion, the judge issued an oral opinion in which he found "credibility problems" with plaintiff's claims that defendant awakened her every day at 2:00 a.m. and verbally abused her. He also concluded that the TV was a family appliance and made no specific finding as to whether defendant broke it. The judge indicated that he "tend[ed] to believe that lady's story about the sexual assault incident and the breaking of the notebook computer, and [he] believ[ed] from the tenor of both parties' testimony that a lot of angry feelings pass back and forth between them." Based upon his findings as to these two events, he issued an FRO.
On appeal, defendant claims the court never specified the section of the harassment statute upon which it based its finding. Additionally, defendant urges that there was an insufficient basis to support a finding of harassment under any of the subsections of N.J.S.A. 2C:33-4.
N.J.S.A. 2C:33-4 provides that a person commits the petty disorderly persons offense of harassment if, with purpose to harass another, he or she:
a. Makes, or causes to be made, a communication or communications anonymously or at extremely inconvenient hours, or in offensively coarse language, or any other manner likely to cause annoyance or alarm;
b. Subjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so; or
c. Engages in any other course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy such other person.
Although the court did not specify which section of the harassment statute it relied upon in finding that plaintiff had proved the predicate offense, we presume the court intended subsection (b) to apply to the sexual assault and subsection (c) to apply to the laptop incident. The ...