March 26, 2009
CHRISTIANA KUYE, PLAINTIFF-RESPONDENT,
OLUSEJI KUYE, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 1, 2008
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 court found plaintiff's testimony relating to these two events credible.
In a non-jury case, the findings of fact 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); Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). The reviewing court should not disturb the judgment unless the trial judge's findings are "'so wholly insupportable as to result in a denial of justice[.]'" Id. (quoting Greenfield v. Dusseault, 60 N.J. Super. 436, 444 (App. Div. 1960), aff'd o.b., 33 N.J. 78 (1960)). This is especially true in family courts, which have "special jurisdiction and expertise in family matters . . . ." Cesare, supra, 154 N.J. at 413. Therefore, an appellate court should not "'disturb the factual findings and legal conclusions of the trial judge unless [it is] convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice . . . .'" Rova Farms, supra, 65 N.J. at 484 (quoting Fagliarone v. Tp. of No. Bergen, 78 N.J. Super. 154, 155 (App. Div. 1963)). Moreover, it is not our function as a reviewing court to substitute our judgment for that of the trial court simply because the facts as presented may have led us to a different conclusion. State v. Locurto, 157 N.J. 463, 471 (1999).
Against this analytical framework, we discern no basis to disturb the factual findings reached by the trier of fact as to the sexual assault occurring on January 2, 2006. The judge had the opportunity to assess the demeanor of each party during both direct and cross-examination. We do, however, take issue with the court's issuance of the FRO based solely upon its finding that plaintiff proved defendant committed an act of harassment.
With the enactment of the DVA, the Legislature intended "to assure the victims of domestic violence the maximum protection from abuse the law can provide." N.J.S.A. 2C:25-18. Under the DVA, which is remedial in nature, the primary focus is to provide immediate protection to the victim. Ibid. A plaintiff seeking relief under the DVA must first prove that a defendant has committed an act of domestic violence, as defined under the statute, N.J.S.A. 2C:25-19(a); Cesare, supra, 154 N.J. at 400. Once a plaintiff proves that a defendant has committed one of the predicate acts, the court must make specific findings as to whether issuance of an FRO is necessary, based upon an evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to protect the victim from an immediate danger or "to prevent further abuse." Cesare, supra, 154 N.J. at 400. That was not done here.
We have repeatedly stated that the "Legislature did not intend that the commission of one of the enumerated predicate acts of domestic violence automatically mandates the entry of a domestic violence restraining order." Silver v. Silver, 387 N.J. Super. 112, 126-27 (App. Div. 2006); see also Kamen v. Egan, 322 N.J. Super. 222, 227 (App. Div. 1999); Corrente v. Corrente, 281 N.J. Super. 243, 248 (App. Div. 1995); Peranio v. Peranio, 280 N.J. Super. 47, 54 (App. Div. 1995).
Here, the court found that plaintiff was the victim of harassment by defendant on two distinct occasions, January 2006 and August 2007. It expressly rejected the allegations of ongoing harassment that, according to plaintiff, occurred continuously between those two dates until September 14, 2007, when plaintiff filed her domestic violence complaint. Given the remoteness of the two events from the time plaintiff sought protection under the DVA, it was incumbent upon the court to make a specific factual determination that an FRO was necessary to prevent "immediate danger" or "prevent further abuse." Silver, supra, 387 N.J. Super. at 128.
In Silver, supra, we observed that "this second determination--whether a domestic violence restraining order should be issued--is most often perfunctory and self-evident . . . ." Id. at 127. We noted that the trial court there found that the defendant "committed the predicate act of assault--an act of violence--and an act of criminal trespass," and that the parties had "an acrimonious relationship manifested by volatility and rage." Id. at 128. We nonetheless vacated the FRO, reinstated the TRO, and remanded the matter to the trial court for a determination on the second prong, namely, whether a restraining order was required to prevent "immediate danger or further acts of domestic violence." Ibid.
We reach a similar conclusion here. The court based its decision to issue the FRO upon two events, one of which occurred more than eighteen months before plaintiff sought the restraining order and a second event that occurred a month before plaintiff filed her domestic violence complaint. Under these circumstances, we cannot conclude that the necessity for issuance of the FRO was "perfunctory and self-evident." Id. at 127.
With respect to the broken laptop, we are constrained to reverse the court's finding of harassment based upon this conduct altogether. The court failed to specify why it concluded that breaking the laptop constituted an act of harassment. Because this conduct involved neither communication to plaintiff under subsection (a), nor physical harm or threat to her under subsection (b), we presume the court concluded that defendant's conduct was proscribed by subsection (c) in that it constituted a "course of alarming conduct or of repeatedly committed acts with purpose to alarm or seriously annoy [plaintiff]." N.J.S.A. 2C:33-4(c). The court, however, made no factual findings in this regard. Rather, the court simply stated that it "tended to believe that lady's story about . . . the breaking of the notebook computer, and [the court] believ[ed] from the tenor of both parties' testimony that a lot of angry feelings pass back and forth between them."
In our view, breaking plaintiff's laptop and the "back and forth" acrimony between the parties does not rise to the level of harassment contemplated under the DVA. See J.N.S. v. D.B.S., 302 N.J. Super. 525, 527 (App. Div. 1997) (finding that defendant's use of offensive language and kicking over garbage can was not intended to alarm). That is not to say that one act could never satisfy the requirement of a course of alarming conduct. See State v. J.T., 294 N.J. Super. 540, 545 (App. Div. 1996) (finding the defendant standing outside the plaintiff's home for a considerable period of time in order that the plaintiff could see him satisfied the "course of alarming conduct" requirement under N.J.S.A. 2C:33-4(c)). Here, plaintiff simply testified that when she returned home one day in August 2007, the laptop was on the floor and defendant told her that she could not do her work because he had broken the laptop. On this record, we are unable to find substantial, credible evidence to support the conclusion that this conduct constituted a course of alarming conduct sufficient to sustain a finding of harassment based upon this one event. We therefore conclude that the factual findings of the trial court do not support the conclusion that the act of breaking plaintiff's laptop constituted an act of harassment under subsection (c).*fn1
We therefore are constrained to vacate the FRO, reinstate the TRO and remand for further proceedings to determine whether the court's finding of harassment based upon a sexual assault occurring in January 2006 warrants the issuance of an FRO. Upon remand, the trial court should determine whether a domestic violence restraining order is necessary to protect plaintiff from immediate danger or further acts of domestic violence. In that connection, the court should make specific findings considering the factors set forth in N.J.S.A. 2C:25-29(a)(1) to (a)(6).
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.